St. Leonards as Chancellor; and he had directed Mr. Lonsdale and myself to proceed with the preparation of bills upon the same principle as Lord St. Leonards had laid down; and, accordingly, we had prepared a Larceny Bill in the spring of that year.

At the last meeting of the Lords' Committee in the summer of 1853, the Committee intimated that the course adopted should be proceeded with as expeditiously as possible, and Lord Campbell wished the whole code to be prepared before the next meeting of Parliament; accordingly bills for burglary, malicious injuries, forgery, piracy, coin, public peace, and trade and commerce, were prepared by Mr. Lonsdale and myself before February, 1854. In preparing all these bills, the Reports of the Criminal Law Commissioners were constantly referred to, and every amendment suggested in those reports which appeared practical and beneficial was inserted in these bills. And I cannot help observing in passing, that the Reports of the Criminal Law Commissioners contain a vast mass of most valuable information, together with many observations on the different parts of the Criminal Law, which are well deserving of consideration by any one who may turn his attention to the improvement of that branch of the law.

In the autumn of 1853, copies of the Offences against the Person Bill and the Larceny Bill were sent to the Judges, and on the 9th of February, 1854, their answers were ordered by the House of Lords to be printed. On the 7th of March following, the replies of Mr. Lonsdale and myself were published, and were afterwards ordered by the House of Lords to be printed. It would be quite beside the purpose of this Introduction to enter into any consideration of any of the points discussed in those papers. It is enough to say that the bills of 1853, and those prepared afterwards, were not introduced in 1854, and the attempt to codify the Criminal Law was abandoned.

To my mind it is plain that a code of the Criminal Law,

embodying the unwritten as well as the written law, can be framed; for I cannot imagine any proposition of law which the mind can clearly apprehend, that may not with due care be reduced into writing; the task is no doubt an extremely difficult one, requiring the perfect concentration of the mind on the subject, and the use of the plainest and clearest language. But it is a very different question, whether such a code could ever be passed through Parliament; and my strong impression is, that it never could be so passed. Neither House of Parliament would adopt bills prepared on such a principle without examination; and though possibly the House of Lords might pass such a bill uninjured, it is perfectly hopeless to suppose that the House of Commons would do the same; and, as the success of such bills would entirely depend on the accuracy of their language, it is highly probable that the alterations made in the House of Commons would prevent the possibility of passing such bills in anything like a perfect state.

On the 23rd August, 1854, a Commission was issued to Lord Cranworth, C., Lord Brougham, Lord Campbell, Lord Wensleydale, C. J. Jervis, Mr. Walpole, Mr. Baines, Sir W. P. Wood, Sir F. Kelly, Messrs. Ker, Coulson, and sundry others, "for the purpose of consolidating the statute laws of the realm, or such parts thereof as they might find capable of being usefully and conveniently consolidated, combining with that process, if they should think it advisable, the incorporation of any parts of the common or unwritten law, in such manner as should seem to them desirable; and also for the purpose of devising or suggesting such rules, if any, as might in their judgment tend to secure simplicity or uniformity, or any other improvements, in the form and style of future statutes."

On the 12th March, 1856, the Commissioners resolved to consolidate the whole Statute Criminal Law, and accordingly a number of barristers were employed under

the Commission to prepare the bills for that purpose. And the following bills were prepared by them:-1, Offences against the Person; 2, Offences against Property by Larceny, &c.; 3, Malicious Injuries to Property; 4, Forgery; 5, Treason and Offences against the State; 6, Offences of a Public Nature; 7, Accessories; 8, Procedure.

These bills were framed as a mere consolidation of the existing Statute Criminal Law relating to all indictable offences, in the very terms of the existing enactments. With the exception of the Procedure Bill, these bills were confined to the clauses creating the offences, and even where an offence punishable on summary conviction was made a felony or misdemeanor on its being committed a second or third time, the summary offences were not introduced, but only so much of the enactment as created the felony or misdemeanor.

On the 4th of June following I became a member of the Statute Law Commission, and on the same day the bills so prepared were referred to Lord Wensleydale, C. J. Jervis, Sir Fitzroy Kelly, and myself, as a committee, to examine and revise them; and accordingly we met from time to time during five weeks, and went through all the bills, comparing them word for word with the statutes from which they were taken; and making no alterations in them except such as were absolutely essential in order to get rid of palpable inconsistencies or provisions manifestly unsuitable to the present day.

On the 26th of July, 1856, these bills were introduced in the House of Lords by Lord Cranworth, C.; but they were not proceeded with in consequence of the late period of the session, and no discussion took place as to their merits.

As these bills were merely consolidations of the existing law, it may be well to make some remarks here on that subject, not only as applicable to the Criminal Law, but also to the Civil Law. In addition to the statutes con

solidated in these bills, I examined a great number of others, word for word, with many of the other bills prepared on the same principle for the Statute Law Commission; and my examination extended to bills on many of the subjects in the Statute Book, and the result at which I arrived, without any doubt whatever, is that mere consolidation, without any amendment or alteration, is impracticable, and, even if it were practicable, is inexpedient, for the following, amongst other reasons:—

The supposition that a consolidation of the statutes in their terms is practicable, proceeds on the assumption that the terms in the consolidated statute would bear the same meaning as they did in the former statutes. Now, although this might be so in many cases, it certainly would not be universally so; for there are many old Acts, which, by the decisions of the Courts upon them, have obtained a special and particular meaning, so that the existing law is to be found in the Acts together with the cases upon them and not in the Acts alone; and consequently, if the Acts were repealed and re-enacted in their very terms, whenever a case arose upon them, the question might and no doubt would be raised, whether the new enactment was to be understood in the same sense as the cases had put on the old enactment, and the amount of uncertainty that would thus be created would be very great. One striking instance may be adduced of this. The 9 Geo. 1, c. 22, provided, inter alia, against the setting fire to an out-house," and that term in that statute was held to apply only to buildings within the curtilage, which was also its Common Law meaning. The 9 Geo. 1, c. 22, was repealed by the 7 & 8 Geo. 4, c: 27, and burning “an out-house" provided for again by the 7 & 8 Geo. 4, c. 30, s. 2, and case after case occurred and was argued on the question whether "out-house" as used in this statute was confined to buildings within the curtilage, or extended to buildings in fields, &c., wholly unconnected with a dwelling-house, and it was at last decided by a majority

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of seven Judges only against six, that an out-house must be within the curtilage to come within that statute, Rex v. Ellison, R. & M., C. C. 336. If such doubts could arise on the use of a single word of determined signification both at Common Law and under a former statute, it is plain that innumerable doubts might be raised on whole clauses, though re-enacted in their very terms, where the meaning of those clauses had been the subject of judicial decisions.

The difficulties thus likely to arise were felt to be so insuperable in the Treason Act, 25 Ed. 3, st. 5, c. 2, that after the most mature consideration, it was determined by the Statute Law Commissioners that this Act could not safely be consolidated with the other criminal enactments, and it was inserted in the Bill relating to Treason and other offences against the State, with a statement reciting, that it was so enacted by such a statute, by which means the old statute was intended to be kept in force with the decisions upon it.

Another difficulty arising from such a course is, that a clause in one statute may, either by itself, or construed with the rest of that statute, bear one meaning, but when transferred into a Consolidation Act, and separated from its former associated clauses, and placed amongst other clauses taken from other Acts, it may be open to an entirely different construction: and in this point one of the greatest difficulties in consolidation consists; for it is hardly possible, even with the greatest care, to foresee the effect of placing in the same Act, especially if it be a long Act, clauses taken from different Acts. And in such cases this dilemma arises. If the effect is foreseen, an alteration of some kind must be made, and then the question immediately arises what that alteration ought to be, and in this the greatest lawyers may differ, and if any alteration in the law be made, it at once ceases to be mere consolidation. If the effect is not foreseen, then the law will be thrown into confusion.