« ForrigeFortsett »
he has not omitted a single argument or assertion which could, by any contrivance, be pressed into his service. We have, however, been unable to discover — though we have most carefully perused his letter--that he has shaken in even the most remote degree any one proposition advanced by us. The success of our scheme depends entirely upon the merits of the working details which we have proposed for carrying it out; yet Mr. Ker does not hesitate to avow that he has “not attempted to go into all the details of the statements in the Report.” Indeed, upon the main points in issue between ourselves and him, he has let judgment go by default, and has contented himself with putting in a plea in abatement for nonjoinder of the Lord Chancellor as co-defendant. “Whatever was done by the Board,” says he,“ had his Lordship’s sanction, and I never took any step without consulting with his Lordship; I do not state this for the purpose of shifting any blame that may be due to me on to the Lord Chancellor; but I have reason to know that he was satisfied with what was done.” A little further on, the learned Commissioner appears to have entertained some doubt whether the plea thus framed was open to a special demurrer; and consequently he has redrawn it in the following form :-“What was done was done, as I have already stated, with the sanction of the Lord Chancellor, under whose direction I acted ; and if what was done was not in accordance with the Lord Chancellor's original views, it was, I suppose, because he, like myself, had modified his opinions.” Without stopping to consider how far this defence is consistent with Lord Cranworth's avowal, in 1853, that he had “ obtained the assistance of Mr. Bellenden Ker, under whose direction the work will proceed ;”—and without expressing any opinion as to the value of a consultation where the parties consulting are left to form mere suppositions respecting the modifications of each other's views ;-it will be desirable to contrast the passages cited above with another passage, contained in Mr. Ker's third Report. “I should state," says he, “ to avoid misapprehension, that I do not consider that my responsibility extends to the details and execution of the different Bills prepared and submitted by my colleagues; and I may add, that even if those Bills should be found defective or unsatisfactory (though I am far from anticipating any such judgment), it would not prove that the plan which I propose is impracticable or objectionable ; but only that the workmen employed were inadequate to the task.” Now, certainly, if these two antagonistic defences are allowed to stand, Mr. Ker's position, during the last three years, has been a very convenient one. He has nominally been the President of one of the most important Boards ever established for the amendment of the law; he has been enjoying all the consideration and respect which attaches to a person occupying that position; he has been receiving the substantial reward of his services in the shape of 1,0001. per annum; yet he has contrived so to arrange matters as to avoid all responsibility. He is not responsible for the acts done by the Board, because they were done by his subordinates; he is not responsible for the orders given, because they were given under the direction of the Chancellor.
But Mr. Ker, not content with stating facts to show that the Lord Chancellor has been equally open to blame with himself, is obviously anxious to make the noble President of this Society a co-defendant also. In our Report we had observed that Mr. Ker “was a member of the Commission appointed in 1835 1 to consolidate the Criminal Law;” and that “the one grand mistake made by that body was, that, instead of digesting into a single statute all the enactments relating to crime, it undertook the ambitious task of attempting to reduce the whole Criminal Law into one written code.” On this passage Mr. Ker thus comments : -“Now, if I was in error, I erred in good company, at least. Your Lordship, when Chancellor, issued the Commission, directing this to be done, not desiring inquiry whether it was expedient to do it.” The Commission lies before us, and so far from bearing out the above statement, it conclusively proves the exact contrary. The material words are as follow : “ Know ye, that we, reposing great trust, &c., do authorize and appoint you, the said Thomas Starkie, Henry Bellenden Ker, William Wightman, Andrew Amos, and John Austin, or any three or more of you, to digest into one statute all the statutes and enactments touching crime, and the trial and punishment thereof; and also to digest into one other statute all the provisions of the common or unwritten law touching the same; and to inquire and report how far it may be expedient to combine both those statutes into one body of the Criminal Law, repealing all other statutory provisions, or how far it may
| This is a misprint for 1833.
be expedient to pass into a law the first-mentioned only of the said statutes." But this is not all, for the Commissioners did inquire into the subject, and in June, 1834, they presented an elaborate Report, recommending in the strongest language the union in one digest both of the written and the unwritten law. This Report is signed by Mr. Bellenden Ker.
We pass on now to a second inaccuracy contained in the letter before us.
Speaking of the “Expurgatory List,” Mr. Ker observes, that it was "a mere rough sketch, to ascertain generally what statutes were in force," and he adds, in another connection, “It was desirable that it should be ascertained (not for the purpose of publication, but as a guide to those employed in consolidation) what statutes were or were not in force; and hence the list prepared by Mr. Anstey and Mr. Rogers.” Now, if we turn to the letter written by Mr. Ker to the Lord Chancellor on the 20th May, 1853, we shall find this passage :-“It was arranged that Mr. Anstey and Mr. Rogers should proceed with a careful examination of the statutes, commencing with the earliest, and should make a list of such as are obsolete or expired, or directly or virtually repealed, for the purpose of making a report to your Lordship, enumerating those which it may appear desirable at once to repeal or declare repealed, in order to remove so much useless matter from the Statute Book. In these lists great progress has been made; and Mr. Anstey and Mr. Rogers expect, I believe, to have completed the revision of the whole Statute Book (for this preliminary purpose) before the end of the present session.” In Mr. Ker's first Report to the Chancellor, the subject is again thus mentioned :-“It was the wish of Mr. Anstey and Mr. Rogers that the whole of their Expurgatory List should be added to this Report; but for the present purpose I conceived that it would be sufficient to furnish a few specimens of the different parts of this very laborious work, the whole of which has been delivered to me; and I propose, as soon as some additions have been made to their lists, and when the whole have been revised, that these should be printed for public use, as they will be very valuable until the revision of the whole Statute Law shall be accomplished.” Again, in his second Report, he expresses the same sentiments. “I still think,” says he, “as suggested in my first Report, that as soon as the list of Messrs. Anstey and Rogers is revised, with, perhaps, the addition of some further details, it would be a convenience to the public that it should be printed for distribution.”
We must next draw attention to a third inaccuracy. Mr. Ker, in his letter to Lord Brougham, remarks, with respect to Mr. Coode's critical examination of the statutes :-"I thought it fit that a specimen of this mode should be prepared, but it being always recollected that nothing was to be undertaken that could not be completed within the experimental year,—for the appointments were expressly confined to one year, and the vote of Parliament was only for that period, -it would have been idle to let Mr. Coode proceed with such a task. It must have taken far more than a year.” Had Mr. Ker always recollected that nothing was to be undertaken that could not be completed within the year, he would have confined the attention of his colleagues to a single subject, and would not have allowed them to fritter away their energies on a multitude of matters which could not by possibility have been completed within ten times that period. Nay, he would never have permitted Mr. Coode to commence a task which “it would have been idle to let him proceed with.” But waiving these considerations, let us see whether Mr. Ker, at the outset, really intended that Mr. Coode should merely prepare a “specimen” of bis mode of examining the statutes. This question he shall answer for himself, not by what he states in 1856, but by what he stated in 1853. In his letter to the Lord Chancellor, to which we have already referred, the following words occur :-“Mr. Coode has been employed on a critical examination of the statutes on a different system, beginning with the latest statute, for the purpose of ascertaining, exhaustively, what is the law now in force; this will enable him, when his task is finished, to check and complete the lists of Mr. Anstey and Mr. Rogers. It is true that Mr. Ker, in making this last statement, evinces a remarkable ignorance of the real character of the work in question ; for the “ Chronological Register” of Mr. Coode is drawn up in such a form as to be utterly useless for the purpose of checking the “ Expurgatory List” of his two colleagues. Still, who can doubt, in the face of this extract, that Mr. Ker's original intention was, that the task intrusted to Mr. Coode should be finished, and that the idea of the preparation of a “specimen is a mere afterthought?
A fourth inaccuracy will be found in p. 6 of the letter. “As to the impossibility of having a really authorized edition," says Mr. Ker," the answer given by your Committee to my statement on the point is, that Parliament may and does give powers to the courts and to large corporations to make rules and bye-laws, and therefore it might give authority to certain commissioners or other persons to prepare a new edition of the public statutes, which, after having been laid before both Houses, should be treated as an authorized edition." And he adds, in a triumphant tone,—"But surely it is a considerable stretch of an argument to say, that because Parliament may safely and properly leave byelaws to be made in certain cases by public bodies, it may therefore safely and properly intrust to a body of commissioners an absolute power over the whole Statute Law of England !” No doubt, such a statement would be “ a considerable stretch of an argument;" but our answer is, that the whole passage cited seems to have been written by Mr. Ker as "a specimen" of what he can achieve by a considerable stretch of imagination. It is scarcely credible, but it is strictly true, that our Report does not contain a single syllable which can be twisted into an allusion either to corporations or to bye-laws, nor does it hint at the possibility of intrusting to commissioners an absolute power over the Statute Law. What is stated in the Report is simply this :-In answer to a technical difficulty suggested by Mr. Ker, that a new edition of the statutes “ could not be made a work of superior authority to any other selection," except " by being actually placed on the Statute Rolls,” we contended that this suggestion was unwarrantable in law, and we instanced the new