335

VI.-PRIVATE BILL LEGISLATION.

R. DODSON'S proposal to transfer the bulk of the jurisdiction over Private Bills from Parliament to an ambulatory tribunal" of a judicial character," has not found favour with the House of Commons, and certainly would not be agreeable to the Parliamentary Bar, to Parliamentary agents, or the profession generally. The first and perhaps most obvious objection to such a plan is that no one tribunal could do the work. In the last session of Parliament thirty-seven committees sat, and the Bills before them occupied 207 days. The ground had previously been cleared for them by the labours of the Examiners of Private Bills, the Standing Orders Committee, and the Court of Referees, which had determined all cases of locus standi. We believe that Mr. Dodson was far too sanguine in supposing that three or four judges or commissioners, who, by the way, were not necessarily to be lawyers, could get through the work which now comes before these various tribunals, in time to allow of an appeal to Parliament before the prorogation. However this may be, the prospects of Parliamentary agents and the Parliamentary Bar, already not very brilliant, would, under such a system, be dismal indeed. At present, the multiplicity of committees sitting at the same time does limit practically the power of the leaders and of leading juniors to attend to every case. But in a single external tribunal, whether sitting in London or the provinces, it is obvious that a few men would monopolize the practice, and might, and probably would, appear on every Bill to the exclusion of the rank and file. Again, at present many members of the Common Law Bar are brought into the committee rooms; but this casual source of fees would be to a great extent at an end also for practitioners outside the charmed circle. The Parliamentary agents would suffer still more than the members of the Bar, for if the greater part of the business of the new court were transacted, as Mr. Dodson expected, in the provinces, at certain local centres, the services of London agents would not be needed, and the work would fall into the hands of local solicitors.

Such being the results of the proposed system upon the profession, would the interests of the public, which of course must be primarily considered, receive any solid benefit by this substitution of a quasi-judicial for a Parliamentary tribunal? We say quasi-judicial" because it is nonsense to suppose that a court constituted, as Mr. Vernon Harcourt

66

suggests, chiefly of laymen, pronouncing upon the merits of Private Bills, could have much of what Mr. Dodson mildly calls "a judicial character." It would much more nearly resemble a court of arbitration, exercising legislative rather than judicial functions. Could a court so constituted, and discharging such functions, hope to escape the suspicion of bias in the exercise of what, after all, must be a discretionary power? Regard being had to the nature of their functions, there is much to be said in favour of a Parliamentary committee, composed of three or four men indifferently selected and having no local interests-men of social position, generally of business habits, and always presided over by a chairman well seasoned in the committee-room, and qualified by long practice, as well as by natural powers, to conduct the inquiry. The influence of the Parliamentary Bar over such a tribunal has probably been a good deal overrated. The men composing it are not easily led by the ears, and listen with impatience to speeches not built on a simple business-like statement of facts and reasons. Above all, whatever decision may be given, promoters and petitioners are alike convinced of the impartiality of the tribunal. Occasionally, mistakes are no doubt made, and the discretion vested in the members of the committee may be wrongly used; but when this has been said, all has been said, and it is by no means clear that a judicial tribunal, having to legislate rather than to administer the law, would give more general satisfaction. On the contrary, there is great force in Mr. Bouverie's objection that a judicial tribunal is wanting in the elasticity which is necessary when varying wants and circumstances must be met, and when a decision given one year may be inexpedient and not for the public advantage in the year following. Nor is it clear that there would be a material saving of expense to the parties by the establishment of a local tribunal constituted as this would be. In practice, it has not been found that the system of ambulatory election judges and local inquiries has relieved candidates from cost in defending or attacking seats. Such inquiries would be far more costly, when, upon a vigorously opposed Bill, engineers and other experts, besides half a score of counsel, were taken from London at the busiest season, and compelled to forego all other fees while attached to the particular case.

From the tone of the House when Mr. Dodson's resolutions were discussed, we may conclude that his scheme is decently buried, and that the House of Commons, at least, is not disposed to part with its jurisdiction over Private Bills. There is reason to believe that the House of Lords would be still less inclined to relinquish this jurisdiction. Such reluctance is little to be wondered at. Under the sanction of private Acts

of Parliament vast sums of money, not falling far short of the whole amount of our national debt, have been lent and spent ; and colossal interests have grown up, vitally interested in the system which the late Chairman of Committees seeks to remodel, and, on the whole, well satisfied with it. The existence of such interests as these suggests great caution, especially before adopting the revolutionary scheme lately propounded. Moreover, Parliament has not to deal here merely with suitors whose causes should be advanced with as little delay and as little expense as possible. Public as well as private rights have often to be guarded, public departments have to be consulted, and the question to be decided is whether private persons or public bodies shall be allowed to obtain powers, frequently over-riding general legislation, and conflicting more or less with private rights. It was hardly probable that either House would part with any portion of its control over the railway companies, whose monopoly is every year increasing, and whose power needs constant curbing by the supreme authority of Parliament. On their side, the railway companies would probably themselves resent an attempt to place them at the mercy of an unknown tribunal, competent or incompetent, which could not, in the nature of things, create or be guided by any code, and the decisions of which would almost certainly fail to command public confidence, even where no reflection was cast upon its impartiality. Public confidence in the court would be further shaken by invariable appeals to Parliament when the interests at stake warranted an appeal; and thus, in the great majority of contested cases, there would be a double hearing and a double set of costs, just as at present, with liability to still greater delay, and no prospect whatever of greater economy than at present. Thus, promoters and petitioners would come round to the Parliamentary Committee after all; and the question may well be asked-" Why not improve the existing jurisdiction, instead of supplementing it by one inferior in authority and in dignity, and not, as far as we can see, likely to be more satisfactory to the suitor?" The President of the Board of Trade has now taken in hand the amount of Private Bill legislation of Parliament, and it is easy to see that his plan will fall far short of the root-and-branch reforms contemplated by Mr. Dodson.

One or two easy and obvious reforms may be indicated here. The House of Commons complains of overwork. It may be replied, that Private Bill legislation is not the least useful, though it may be the least ambitious part of this work of Parliament. Turnpike roads, the supply of gas and water, the drainage and improvement of towns, the conservancy of rivers, the making of docks, the maintenance of harbours, the construction of railways and tramways-all these, and

more, are the creatures of Parliament, called into existence. and regulated by means of Private Acts. It is a pity that such labours are so little known and cannot be better recognised by the country. They are, however, of immense public value, and ought not, we think, to be abandoned for the more showy and prominent duties of general legislation. That they might be lightened is certain. For example, the number of members serving on any committee might be safely reduced from four to three, without impairing the efficiency of the tribunal. The question of joint committees is a larger one, into which we have not now space to enter. But one other change, which might well be adopted in the interest of promoters, is the reduction of the House fees, which are now excessive, and go far beyond the sum necessary for defraying the legitimate expenses of the Private Bill machinery of Parliament. With these and other changes which might be indicated, the Legislature still keeping its present control over Private Bill legislation, we believe that private wants as well as public interests would be consulted, both Houses might be relieved from considerable labour, while a substantial and safe reform might be effected in this branch of Parliamentary jurisdiction.

IT

VII. THE PROPOSED ECCLESIASTICAL JUDGE. T was a saying of Benjamin Franklin that nothing was cheaply bought which was not wanted. The strongest argument that has been used on behalf of the Ecclesiastical Courts and Registries Bill is, that it is an economical arrangement, but the noble lord who is responsible for it seems to us to have failed to show that one of its chief provisions, namely, the appointment of a new ecclesiastical judge, is a necessary

one.

It must be admitted that the procedure of the Ecclesiastical Courts is a field to which the attention of law reformers is well directed, for though the objects, with which some of the suits which come before those courts are prosecuted, may not commend themselves to general approbation, it should be remembered that a cumbrous and expensive procedure tells with equal hardship upon those who are called upon to defend, as upon those who choose to promote, such suits; and whatever we may think of the policy of doctrinal suits, with regard to quasi-criminal causes, common justice to the accused demands a reform of the mode in which they are conducted. However, we are not at present concerned to discuss the necessity of such reforms nor to pass an opinion upon the particular

method by which the Bill before us purports to effect them; but admitting the necessity and expediency of such reforms, we are not prepared to admit that the consequence of those reforms would be a material increase in the amount of work thrown upon the Ecclesiastical Courts. The proof of this is, in our opinion, incumbent upon those who advocate the appointment of a new judge, for we hope to show that the amount of work discharged by those courts under existing circumstances does not necessitate such an appointment.

The Bill does not touch the present Diocesan Courts, but by its 16th section enacts that the two archbishops may appoint a barrister of fifteen years' standing to be judge of the Provincial Courts of Canterbury and York; and the 21st section. empowers the Queen in Council to assign him a salary not exceeding a sum which it is proposed to fix at 3000l. per annum. We should certainly have expected to find that the House of Lords, before passing these sections, had satisfied themselves that the present provincial courts were overwhelmed with work. But what is the actual state of the case? Let us take the chief of the two provincial courts, the Court of Arches. Before that court there is at the present time not a single cause pending; last year there was one; and in 1870 there were two, the total number of days or parts of days which the court has sat during the last three years being forty-five.

It is true that the present judge of the Court of Arches receives, as such, a salary of only 301., but as judge of the High Court of Admiralty he is remunerated on a scale which puts him on an equal footing with the other judges in Westminster Hall, while his work is in the aggregate far lighter than that of the latter judges. The combination of the two courts may be irrational and indefensible, but why divorce them at the expense of having to create a new judge exclusively to discharge functions which are now discharged by a judge who is neither underpaid nor overworked?

Moreover, the erection of a court having exclusive jurisdiction over a special class of cases is itself a retrograde step.

How is such a court to fit in with the scheme propounded by the Judicature Commission, the very key-stone of which is the abolition of special jurisdictions? We can only suppose that the framers of this Bill have disregarded the possibility of that scheme being carried into effect, for it cannot be contended that even cases involving points of doctrine could not be adequately provided for under a scheme which allows the constitutions of the court to be modified by the calling in of skilled assessors, when the cause to be heard requires some special training or knowledge.

A system of assessors would cause just as much ecclesiastical