Monday, August 10, 2015

Statute consolidation and the forest for the trees

While reading up on statute consolidation and revision in 19th-century Britain, I came across (thanks to Desmond H. Brown, "Abortive Attempts to Codify English Criminal Law") an 1826 speech on the topic by the great reforming Conservative politician, Robert Peel, then Home Secretary. Here's what Peel had to say about criminal offenses regarding trees (a topic written about so elegantly by EP Thompson):
There are not less than twenty statutes relating to the preservation of trees from theft or wilful injury, some properly confined to trees alone, others relating to matters so utterly unconnected with the protection of timber, or with the crime of theft, that I shall be almost suspected of fabricating the title of a bill for the purpose of my argument. It seems to have been discovered about fifty or sixty years since that the various laws which had previously passed with respect to timber, did not afford sufficient protection to hollies, thorns, and quicksets, and to save the trouble of amending the former laws—these neglected shrubs were provided for in an act, which, in taking charge of them, took charge also of the other matters referred to in the following title.
George Patten, Sir Robert Peel, 2nd Bt
"An Act for the better securing the duties of customs upon certain goods removed from the outports and other places to London; for regulating the fees of his majesty's customs in the province of Senegambia in Africa; for allowing to the receivers general of the duties on offices and employments in Scotland a proper compensation; for the better preservation of hollies, thorns, and quicksets in forests, chases, and private grounds, and of trees and underwoods in forests and chases; and for authorizing the exportation of a limited quantity of an inferior sort of barley called bigg from the port of Kirkwall in the island of Orkney."
Now, Sir, what I propose is, not to lessen the security which the law gives to the owner of madder roots, not to throw open the holly or thorn to wanton depredation, but merely to transplant them to a more congenial soil than the province of Senegambia.
The laws relating to trees are fruitful in instances of hasty and slovenly legislation. For instance, there passed in the 6th Geo. 3rd [~1765], two statutes for the protection of certain trees and vegetable productions in gardens, the 36th and 48th chapters, which must have passed almost concurrently. Neither of them refer to the host of antecedent statutes, and the author of chapter 48, must have been unapprized of the labours of him who had introduced and probably was superintending at the time the progress of chapter 36; for offences which by that act are made a felony, are by chapter 48 punishable only with a fine of twenty pounds. Had the latter statute passed in a succeeding session of parliament, it would have amounted to a virtual repeal of the preceding act. There are no less than three separate acts of parliament extending the provisions of chapter 48 to particular species of trees.
And here's what he had to say on fish:
Again, the statute which makes it an offence to steal or destroy fish in streams, expressly refers to such streams as pass in or through an estate. If therefore the Stream, as is frequently the case, neither passes in nor through an estate, but passes between two estates, being the boundary to each, the owner of the fish forfeits his protection under the statute.


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