The Sun.
London, England, 1856-02-13 00:00:00

properly f ramed except by some person who was acquainted
with the Whole state of the law with regard to its subject
matter ; but, under the present system, private members
brought in. bills with some particular object, and without any
knowledge of the general state of the law on the subject to
which thesereferred. The Government were afraid to oppose
their introduction lest they should be defeated; and the pas-
sing of the bills thus introduced became ultimately a sort of
scramble among those who supported them. He believed that
if his proposal were carried out it would be found a remedy
for this state of things. As ore instance of the anomalous
state in which the statute-book was at the present time, he
would call thoattention of the house to one or two Irish statutes.
The statute I.T and S Vic., c. 76, was passed to facilitate the
transfer of la nd —a very important object, but one requiring
that the law u pon it should be clearly intelligible to all. The very
next session it was found necessary to amend it, and an act was
passed for that purpose. The third section of this latter act was
intended to me et a peculiarity of the Irish law with regard
to leases and surrenders, but by one of those blunders which
had driven him to tro-able the house on the present occasion,
the word "release" was substituted for "lease," and thus a
fruitful source of litigation was opened. Se, again, in the
year 1849 a statute (Vac 26th chapter of the session) was en-
acted, and in the very same year, by cap. 110, the former act
was suspended. Another instance occurred in the case of the
Common Law Procedure Act. When the bill was going through
that house, by its 101st section it extended certain sections
having relation to the important subject of evidence to all
courts of justice in the United Kingdom. When the measure
went up to the other house variousfalterations were made,
which had the effect of throwing out the original numbering
of the sections. No proper alteration, however, was thereupon
made in tho 101st section, and hence, as it happened, Eng-
land was deprived, as to the inferior courts, of ono very im-
portant provision, while upon Ireland there was conferred
by another section, which was in the manner he had just
described extended to all courts, powers which were quite
unnecessary, inasmuch as they had already been possessed
by the judicature of that country for a long series of years.
Stich wretched mistakes as these could never occur if there
were a proper department duly charged with the preparation
of the statutes. No doubt there would be some little extra
expense incurred by such a plan, but that ought not to be the
consideration in a matter of such vital necessity. The coun-
try had a right to the beet talent and the best ability that
could be procured. Wherever that ability and those talents
were to be bad, the country ought to possess the benefit of
them. (Hear.) In truth he believed that no increase of ex'-
pouffe would be incurred by such a plan, for it would obviate
the necessity for their perpetually recurring to acts to amend
and acts to explain acts which ought never to have required
amendment. Another fruitful cause of mischief and doubt
was this, that acts on kindred subjects, or on subjects touch-
ing in some of their parts upon the same points, were prepared
by different commissioners. Thus, not very long back, there
were two bills brought in,, the one founded upon the report
of a common law and the other of a real property commis-
sion. In one of these bills the limitations of actions with
respect to certain claims in connection with real estate was
fixed at six years, while in the other 20 years was the limit.
Both bills became acts ; and there were upon the statute-book
two equally binding, but yet directly conflicting laws. An-
other sample of the inconsistency which the present system led
to occurred 'ln the year 1848. In that year he had introduced
a bankrupt act for Ireland, and in that act he inserted a
clause which he took from a proposed measure of Lord
Brougham's. The bill, with the clause, pissed through that
house without objection. Meanwhile a bill came down from
the House of Lords with a clause in it similar to the one
to which he had alreaely averted. This identical clause,
although it had but a short time previously passed the house
without a word, excited opposition upon its second appear-
ance to such an extent that it was iu the end withdrawn.
Another evil arose from the practice of passing acts for
England, and then, in the following session, passing others
for Ireland, sometimes with slight verbal alterations. An
example of this kind occurred in the case of the act to
amend the Fines and Recoveries Act, which was passed in a
late session of Parliament. Another class of acts to w'.ich he
must refer were the Board of Works Acts. Those were
brought in about the middle of July, when it was extremely
difficult to get the attention of hon. members to any subject.
At the latter end of last year a bill of this class was brought
in, which was most objectionable in some of its details. He
(Mr. Napier) attended in the house from day to day, morning
and evening (for it was when day sittings were being eeld),in
order to prevent the measure being hurried through without
opposition or comment. Ultimately, finding that every day it
made its appearance and was passed over, and fearing that an
opportunity would occur when it might be get through, he
went to the Secretary for Ireland to expostulate upon the sub-
ject, but was told that it was not in his department; thence
he went to the Irish Solicitor-General, and got the same re-
ply ; in the end he " caught up" the bill in the Treasury De-
partment, and it was only by using the strongest expostu-
lations that lie succeeded in his object. Now, this was
not a course to which a private member of the house anxious
to do his duty ought to be subjected. Had there been a pro-
per responsible board of officers entrusted with the supervi-
sion and care of bills, to them he should have gone and stated
his objections. The project which he brought before the
house was not a new one, nor was there wanting to it many
distinguishes advocates. Some years since Lord Brougham
had stated his views upon the subject, and in ged the neces-
sity that existed for the organisatien of a board to superintend
the drafting of the statutes, and at the head of this board his
Ibrdship was of opinion that the Minister of Justice ought to
be placed. " Without some such system," said Lord
Brougham, " it is impossible to work out any plan of safe and
efficient law reform." So also at a much more recent period
the subject had again been brought under consideration by
Lord Lyndhurst, who pointed out how necessary it was that
the present system stiould be amended. His lordship referred
to a case in which a court of law had been for many days
engaged in endeavouring to put a meaning upon the word
" may" in an act ofTarliament, with respect to which they
ultimately came to a conclusion diametrically opposed to that
at which another court had arrived. Upon that occasion the
Lord Chancellor admitted that the evil called loudly for re-
medy. The fact was that in the framing of statutes the re.
sponsibility was too much divided. (Hear.) Hon. members
came into that house perhaps far half an hour only when the
house was in committee and proposed off-hand important al-
terations disturbing the entire scope of a bill. Rightly and
properly to draw up the written laws of a country like this
was a great, a gigantic task. (Hear.) That was all the more
reason that it should be attended to by men whose duty it
should be to give their whole attettion to it. At present it was
everybody's, and therefore nobody's business. (Hear.) As the
matter stood, statutes came before courts of justice, they were
there laughed at - the judges were in the habit of stating that
they were unable to say what was the intention of the Legisla-
ture. On the other hand, the Legislature were sometimes in
the habit of charging courts of justice with passing over and
forgetting the spirit of the law in the mere verbal criticisms.
Such a course was not of a character to raise in dignity our
conception of the law or of those who administered it. • The
plan which he advocated wouhVut an end to all this, and
would have the further advantage of leaving the House of
Commons free for the discussion of broad questions of prin-
ciple instead of its being engrossed, as was at present too
often the ease, with mere petty questions of detail. Nor
would this be all—the statutes would be uniform, would be
classified, and, at least, would not carry upon the face of
them actual contradictions. Let Jim honourable member take
up a volume of the statutes, they would be found (lung
together as if bound into the cover with a pitchfork.
(Hear, hear.) There would also be a body who could re-
ceive the suggestions of practical men throughout the
country, who could also take into consideration the reports
of committees and commissioners. None of the existing
means of information would be passed over, but a depart-
ment could be found able to take that information into con-
sideration, and turn it to practical use. There were depart-
ments for war; for trade, for the navy ; why should not jus-
tice—of ail things the most essmtial to the internal well-being
of a country—have a department also I He hoped that the
house now that it had got the subject fairly before it, would
give him its opinion upon the proposition. lie had proposed
it at the end of last session, and every hour's reflection which-
he had since given to the subject had confirmed him in his
determination to persevere in the matter. (Hear, hear.)
He called upon the bowie to unite in rescuing the law and
the administration of justice from its present defective state.
Much remained to bo done. The house had still to settle
the jurisdiction of our different courts, to amend their pro-
cedure, and to lessen as much as possible the difference
between England and Ireland. If they persevered in such
a course, voices from the noble dead would honour them,
the recollection of the noble-minded and manly wisdom of
Romilly would be with them, they would have the good
wishes of one who yet remained, whose eye was not
dimmed, and whose natural fire was not yet decayed—he
alluded to Henry Lord Brougham. (Hear.) He (Mr. Napier)
did hope that the house would join in giving effect to those
propositions which he should submit. He hoped by these
moans that our laws 'Might be rendered consistent, rational,
clear, and intelligible—worthy to be deposited in the sacred
ark of the respect and a:feet:oil of our country. (Hear.)
Mr. COLLIER. rose to second the motion of the right hon.
gentleman. Ho thought it almost impossible to overrate the
importance of the question before the house. It was not one
which appealed to public excitement, or which called up
party feeling; but it was of far greater importance than
many matters which comprised Irith those characteristics.
It was, so to speak, a question which concerned the general
health of the body politic. Nations, like individuals, al-
though they were anxious enough when any sharp or sudden
malady intervened, were veto be careless of their general
health.. That which his right houourable friend at pre-
sent brought under
,the consideration of the house was a
chronic malady, and such a disease one was apt to consider
inevitable. The fact was, that the laws of the country were
very far behind its present condition. There existed at this
moment tribunals and forms of procedure as out of place at
the present time as a galley of Elizabeth's time would be in a
fleet of steam-ships—some courts whose procedure was so nu-
just that other courts were obliged to interfere to restrain
them: not content with law and equity, we had a third set of
trinrtn alsin the eeelestastical courts. There was no need tp can.
to the recollection of the house the difference between real
and personal estate, nor the numerous abortive attempts
which had been made to
simplify the transfer of landed pro-
perty., Nor was there any need to advert to the defective state
of legal education, throughewwhich, although we had many
able practitioners, we had
of
Emnelnanriiinabilte ofcomprehend-
ing in one view the-dace
jurisprudence as a srelation to
general principle 4 of
science. He needed
not to call attention to the state of the stattui to book after
what had been said by the right haonna. gentleman—it eamnan—it was
indeed a collection without a form,
darknessi
as on the face of it, and one who had heretofordemeziefeated
every attempt to set it right. The worst thine about
matter was this, that it was an evil perpetually
No doubt there were some who despaired of &Rale. s,-recasmient
ecause the evil was gigantic. Should it be said that the Ro-
man law, after having accumulated for ten centuries without
any attempt to digest it, was yet reduced to order in three
years—that Napoleon was able in a few years, notwithstand-
i k the difficulties of an excited political state, to codify the
lawa- of France—that America had a codified set of laws for
the state of New —that almost every state of Europe
possessed a code, and yet England had not been able—he
codify—to reduce her laws to anything like
would not say
system. lf they had done their best and had failed, then, in-
deed, there might be a cause for despondency ; but they had
not done their best, or indeed had scarcely even taken a step
in the light direction. The true secret of the failures was that
had been nobody's business.
hitherto the reform. of the law
(Hear, hear.) The law officers of the Crown were made-
plate to the task, simply because they had no time to attend
,to it. The Lord Chancellor, with his
was &Ina, ly preolccombianedi
indeed,judicial
uanntdd
political functions, 1 te form no part of
n pied, n
very lately, law reform had been considered
his buelneem. Ldrd Eldon never considered it to be his duty
to reform, but, on the contrary, gave the meat strenuous
tl r
op-
position to
any attempt that might be made from another
quarter. As for the Attorney and Solicitorie
citor General, what be-
tween their official business and their private practice, any
assistance from them was entirely out of the question. What,
then, had been the amount of extraneous aid given? Recourse
bad been bad froin time to time to commissions; but as a ge-
neral rule they had not been attended with any satisfactory
results. No doubt theCernmon Law Commission had, in so far
as it went, done some geed, bat unfortunately all these com-
missions seemed to have been nominated on the principle of i
balancing conflicting opinions, and the result was that now, in
so far as any definite COUChli3lOll was concerned, the members
were at a dead lock, or the results we
le the Commissionwere melees.' (Hear, hear.)
Take, for exaraP on the Law of Partnership,
which Ant,rod that the; Jaw NUS in a satisfactory state, such
-;;;;;IWeinc" subSequeltir "ga*;-ed by the almost unanimous
• tlacision 6f the house. (Hear.) Thea there was the Eecle-