The Legal Observer, DIGEST, AND JOURNAL OF JURISPRUDENCE. THE SYSTEM OF PRIVATE BILL remedy. The objections to the present LEGISLATION. THE manner and spirit in which what is called "the private bill business," is conducted in both houses of parliament, and especially in the House of Commons, has for many years past been the subject of general complaint and animadversion. The magnitude of the evil is become more striking as the exigences of the country have occasioned a gradual increase in the number of private bills, whilst the numerous applications to parliament, arising from the spirit of railway enterprise within the last three or four years, have tended to expose to all classes of the community the enormities of a system which outside the walls of parliament has long been without advocates. system, as might be anticipated, are not into parliament has been continually increasing "That the construction of railways has still further and more rapidly increased this amount, personal acts passed during the three sessions so that the average of private and local and 1840, 1841, and 1842, having been 178, there were 171 railway bills brought in during the session 1845, besides common private bills; and during the present session there have been 212 other bills, and 482 railway bills; and in the session of 1845, 241 private acts were besides bills brought in and thrown out at difpassed, containing, 13,624 sections or schedules, ferent stages. Whilst the legislature, however, leant a willing ear to the suggestions of every plausible charlatan who recommended alterations in the laws, and sanctioned various uncalled for changes in its administration which experience has already associated with the odious name of "jobs," the monster grievance which stood within its own gates, continued unredressed and without any energetic endeavours having compelling landowners and other proprietors to "That most of such bills have the power of been hitherto made to mitigate its injurious part with their property, or otherwise suffer it effects, or prevent the injustice of which it to be interfered with; many of them inflict is the fruitful parent. It appears, however, from a paper which has been very recently printed by direction of the House of Lords, that this subject at length begins to attract some portion of that attention, to which it is eminently entitled, at the hands of those who have the exclusive power of applying an adequate, VOL. XXXIV. No. 1,004. "That such private bills have dealt with an immense amount of property, and with the most important rights and interests of the community. great hardships on individuals; and all of them suspend or abrogate the law of the land in particular instances and for special purposes. All of them, therefore, authorize the doing of acts wholly illegal by the ordinary course of the thorize acts to be done wholly inconsistent with common and statute law, and most of them auall natural right. "That while the most trifling question arising G 114 The System of Private Bill Legislation. between parties on the state of disputed facts, | ceased to exercise with credit to itself or or the application of known laws to these facts, advantage to the community. The framers must in this and indeed in every country en- of the document under consideration have joying the blessings of regular governments, endeavoured to maintain the consistency, come before tribunals qualified by the learning, and at the same time satisfy the constitu skill, and experience of the judges composing tional prejudices, of the members of both questions, the oftentimes much more important houses in this respect, by explicitly deand much more difficult questions raised by claring:the consideration of private bills only come before committees of both houses, on which professional and experienced men hardly ever sit, and which are wholly composed of persons who can have no experience to guide them, inasmuch as cach can only sit on one or two cases in the course of a session. them to deal with such comparatively easy "That it is nevertheless inexpedient, in a constitutional view, for parliament, or either of the houses thereof, to abdicate its functions and privileges in respect of private legislation; but, on the contrary, that both the houses ought jealously to retain their undoubted power of "That the individual responsibility of the deciding upon every proposed enactment, and judges who compose the ordinary tribunals of of assenting to or dissenting from such prothis and all weil-governed states affords a se-posal." curity eminently necessary for enforcing the due administration of justice, and for giving the community full confidence in their decisions; a security held to be necessary, although it is much more difficult for a judge dealing with the known and fixed rules of the law to swerve from his duty and pervert that law to the pur"That it is highly expedient that the said pose of injustice, than it is for men who are houses should obtain the aid of some other tricalled upon to decide upon the provisions of a bunal, which may enable them to transact the pribill professedly creating exceptions to the law vate bill business, both more expeditiously, more for particular purposes, and arbitrarily dealing economically, and more satisfactorily, without with rights according to no known and fixed at all infringing upon the undoubted privileges rules or principles whatsoever. of parliament, or parting at all with the control of each house over each enactment. "That in committees of the two houses, and dealing with interests oftentimes incomparably more important than ever come before courts of justice, the members, guided by no fixed rules, changed in each case, unknown to the community, not acting in the eyes either of a watchful public or a jealous profession, act almost wholly without any individual responsibility; nor can be prevented, as judges are, at least in this country, from privately seeing parties behind each other's backs, and proceeding upon information, and listening to reasons, and yielding to motives, of a private and personal nature. The proposal to establish a tribunal. auxiliary to parliament and without infringing on its privileges in regard to private legislation is thus stated: "That, with this view, it is expedient to form a court or board apart from and independent of the High Court of Parliament, except as regards the removal of its members by a joint address of both houses. "That this court or board shall consist of five members appointed by the Crown, and so paid for their services that the Crown may always obtain the aid of the most respectable members of the legal profession in constituting such board. “That until it be seen how far the said number of commissioners may suffice, or may prove "That the great and increasing mass of pri- too great, it is expedient in the first instance, vate bill business renders it still more difficult to appoint as two of the members of such court for the two houses of parliament to transact or board either Masters in Chancery or Comsuch business in a manner at all satisfactory, missioners of Bankruptcy, in order, that if it and that the attempt to transact it proves highly be found possible, the three permanently apprejudicial to the general political and legisla-pointed should continue alone to cause an extive business of the country. pense to the country." "That the delay, vexation, and expense unavoidable in the present mode of transacting or endeavouring to transact such private business lays a heavy burden upon the parties applying for private acts, and on the parties opposing them." Without staying to consider the constitution of the new board, which is open to some objection, we proceed to explain by a further extract the manner in which the newly created tribunal is to be put in The supposed difficulty which has here- motion, or, in other words, how the board is tofore stood in the way of every attempt to to be called upon to investigate the proimprove the system of private bill legisla- visions of any bill, the extent of authority tion has arisen from the assumed un- with which the members individually and willingness of the legislature to abdicate collectively are intended to be invested, of its functions, or to transfer and the machinery by which the new tri NEWSPAtribunal powers which it bad bunal is expected to perform its functions. TAUNDRY The System of Private Bill Legislation. 115 We subjoin the propositions embodying opposition to be paid by such opposing party these particulars without comment or to the other party or parties. "That it shall be lawful for the court or abridgment, and in doing so put our readers in possession of the entire docu-board, by a majority of its members, to make rules and regulations for its proceedings, a copy whereof shall be laid before both houses of ment: "That each house, upon receiving any bill, and giving it a first reading, may refer it to the court before whom parties may be heard, and which shall have the power of a court of record with respect to oaths, process, and commitment, and the power of deciding all questions at law, subject to an opinion of one of the four courts in Westminster Hall, in case it shall think fit, and of calling in the aid of a jury on any disputed fact, provided both parties shall agree in asking such issue, and provided the court shall think fit to grant it. "That each member of the court shall have power to try all matters, and go through the consideration of any bill, so as aforesaid referred by either house of parliament, and to reserve, if either party require it, and he think fit, any question for the opinion of the whole court, three whereof to be a quorum for this purpose, including the referring member of the court; and that any question being raised on receiving or rejecting evidence, such member may proceed to dispose of it himself, saving, if he think fit, the objection, as above provided, for the opinion of the court. "That juries, if an issue be required and allowed as aforesaid, shall be taken from the special jury lists for the county of Middlesex, in such manner and subject to such challenge as in matters before the three courts of law of Westminster Hall. parliament within one week after their being framed, or, if in vacation time, within one week after the commencement of the ensuing session, and that such rules and regulations shall be deemed and taken to be valid for guiding its proceedings, unless either house of parliament shall make any resolution against them or any part thereof, which resolution shall be imperative on the said court or board, and new rules shall be made by it in compliance with such resolution; the new rules to be laid before both houses, as before, within one week after they are framed; and these new rules shall be valid to regulate the proceedings of the said court other house shall disapprove thereof in whole or board, unless and until a resolution of the or in part. "That the court or board shall have the re quisite number of registers and clerks to assist its members, under the superintendence of the Lords Commissioners of the Treasury." The That a proposition of this nature should be entertained by either branch of the legislature, and find sufficient favour to be promulgated throughout the United Kingdom, under its sanction and with its authority, is itself matter of congratulation, from which we augur the best results. subject is thus fairly propounded for con"That each member of the board or court sideration and discussion. Nothing more shall have the power of giving costs to or against can be done or expected during the waning any party at his discretion, and that no review existence of the present parliament, but of his order on this matter shall be permitted. the question affords an encouraging field "That each member of the said board or for useful exertion and honourable distinccourt shall, at his discretion, and with the consent of all parties, issue a commission for the tion upon the opening of a new parliament, purpose of taking evidence as to any disputed when we may expect to see the whole submatter of fact involved in any bill brought be- ject submitted, without any unnecessary fore such member, and that the whole expense delay, to committees of both houses. The of such commission shall be defrayed by the parties, under the direction of the member aforesaid. public inconvenience and injury, as well as the injustice to the profession, occasioned "That the bill, having been fully examined by permitting unqualified persons to act in by such court, or any member thereof, shall be the capacity of parliamentary agents, which reported to the house of parliament by which it is so pointedly and accurately stated in the had been referred, together with such alterations address of "The Provincial and Metropolior additions as may have been determined upon tan Law Association, "a will then be brought as just, fitting, or expedient; and that the said under the consideration of parliament, house shall then proceed with the consideration under circumstances which it is hoped will of the bill so reported, and deal with it as such ensure all that the profession can desirehouse shall think fit, either adopting the report, or rejecting it, or varying it, as to the wisdom a fair and unprejudiced investigation. We of such house shall seem meet. shall take an early opportunity of returning to this subject, as we deem it second to none in its practical importance. "That the only stage to be omitted by such house on passing such reported bill shall be the committee and the report. "That if any party oppose such reported bill before either house, it shall be in the power of the house before which such opposition shall be offered to award the costs of resisting such a See ante, p. 46, sect. 8.. 2 116 The Old and New Law Societies. THE OLD AND NEW LAW SO- UNION OF TOWN AND COUNTRY SO- time, and to exert their influence in behal of their brethren? or are the complainants well-informed of what has been done, or attempted? or are they acquainted with the impediments and difficulties in the way of success? We have frequently heard of complaints of matters about which we beIt must be gratifying to the promoters lieve everything that ability, zeal, and of the new Association of Town and judgment could effect, has been tried and Country Solicitors to find that the objects without effect. Success has been deserved, stated in the address to the profession are but could not be commanded. We must universally approved. Some, indeed, are not, however, protest altogether against pleased with the plan as the supposed the exercise of that "privilege of grumbresult of their own suggestions; others see ling" which belongs of right to every realized what they have long wished, but Englishman, and which is, no doubt, occanever expressed;—and numerous are the sionally useful in stimulating to further thanks given to the committee for their exertion, even those who have willingly able and just statement, both of the public and disinterestedly laboured for the geneand professional grievances, in relation to ral good. We have heard it said, moreover, the administration of justice. As, however, that the profession resembles a rope of there must be an alloy in everything, sand which it is impossible to unite, and if finally comes a regret, and somewhat of a the Law Society were as inert as its opreproach, that a grave mistake has been ponents allege, it would be no inapt remade in connecting the operations of the presentative of the great bulk of its new association with those of the long members. We do not, however, join established "Incorporated Law Society.' in this view of the profession. We And therewith is accompanied a repetition hope for better things. True it is, that of the complaints which have occasionally been made against that society, not only have been made to the general body have on several occasions the appeals which for a supposed inertness on the one hand, not been promptly answered; but the exbut for a preference on the other of the in-planation is evident :-each has relied on terests of London over country solicitors. the exertions to be made by others, and Now, it may be of service to the promoters whilst deeply engaged in his clients' inof the present movement, if, from means of terests, he has generally neglected his own. information within our power, we offer Now, however, he is "affected with notice" some explanation of the true state of facts that the association expects "every man In the outset, we beg it to be understood, will do his duty," and we trust there will that what we consider to be a gross mis- be a general, if not a universal, enrolment take, leading to injurious misrepresentations, in the new association of every respectable we do not ascribe to wilfulness, but to want practitioner throughout England and of information. We cannot, however, Wales. acquit some of the opponents of the Law The address appears clearly to explain Society of deficient candour and fairness the objects of the association, and the adin their views; for had due inquiry been vantages proposed by uniting the solicitors made into the grounds of complaint, they both in town and country into one body. would be found to be vastly exaggerated, It does not appear that it will interfere and many of them wholly without founda- either with the Incorporated Law Society in London, or with the various Provincial It may not be unreasonable to inquire law societies. It is designed for the pur from whom these complaints come? Are they from persons who have rendered any men advantage of its several parts. Hitherpose of uniting the whole body for the comservice to the profession themselves, so as to, each great section has acted separately. to justify their blaming those who have for It was crroneously supposed that they many years, not only liberally contributed to professional funds, but have devoted, and continue to devote, much of their valuable tion. See p. 41, ante. This, as we understand, is the only doubt or difficulty suggested in the Law Times. could not be consolidated. It was alleged, indeed, by some who ought to have known better, that the London solicitors selfishly attended only to their own exclusive advantage. Now, so far from this being the case, the founders of the Law Institution, at the time it was first projected in 1823, The Old and New Law Societies. 117 proposed that the body should consist of somewhat at variance. Some also of the attorneys as well in the country as in modes of practice were different, and each town. Again, on applying for its charter, thought their own the better; but these in 1831, the society comprehended within circumstances ought evidently not to form it, the whole of that branch of the profes- any ground for either class to neglect what sion, not only the solicitors of England and is beneficial to both. Even in London Wales, but also of Ireland and Scotland, there was a time, not beyond the memory and such are the provision in the present of some living practitioners, when the socharter. The Incorporated Society has, in- licitors in the City, and those located about deed, always promoted communications with the Inns of Court and at the west end the provincial law societies, and when the looked with jealousy upon each other,latter proposed a more decided union of differing occasionally in habits of business interests, the former readily lent their aid, and rules of practice, which were rigidly so far as was consistent with the constitu- enforced by some and relaxed by others. tion of the society. It is remarkable that These east and west estrangements have of the 3,000 London solicitors nearly long ceased to exist, and are matters of 1,100 have joined the Incorporated So- tradition only to the present race of prac ciety; but of 7,000 in the provinces the titioners. So we trust will be, ere long, the number is less than 300. It seemed there- supposed adverse feelings and interests of fore desirable that some new efforts should the metropolitan and provincial profession. be made for bringing the whole under one bond of professional fellowship. The frequent and rapid personal communication throughout the kingdom which now The great mistake which has been made takes place cannot fail to promote this deby some recent writers is that of promoting sirable end, and the new association will mainly the union of the country solicitors, doubtless accelerate and confirm it. as distinct from the London practitioners. When speaking of the union of profesOne of our contemporaries has laboured sional men, it may not be inappropriate to long and energetically for this purpose, observe that the bar is much more socially and we have reason to believe he has con- united than the solicitors. Besides their siderably retarded the true principle of Inns of Court, to one of which every member union amongst that branch of the profession of course necessarily belongs, there is a whose interests he has undertaken to advo- voluntary club on every circuit, familiarly cate. We must not, however, ascribe the called "the bar mess." The attorneys whole of the disunion to his agency, be- very sparingly congregate in the same cause we are aware that there previously manner. There are, indeed, the Inns of existed much prejudice, of which we had Chancery, of which the majority are atsufficient evidence many years ago, when this work was the sole means of communication amongst members of the profession throughout the country. No doubt the relation of country attorney and town agent gave rise to the notion that their pecuniary interests were d Our contemporary gives a conjectural account of the interview between the provincial deputation and the council of the Incorporated Law Society, accompanied by some imaginary details, written no doubt currente calamo, and not in the best taste in regard to gentlemen of great eminence in their profession and of the highest respectability. The address of the committee which has been so generally approved, It was arranged that the town members states all that is necessary to say on this subshould pay 31. annually, and the country mem-ject. "The committee (they say) have had bers 21., and the sum was reduced in the year interviews with the council of the Incorpo1837 to 17., whilst that of the London members rated Law Society, and with the committees was not reduced till 1845 to 21. Originally the of many of the provincial law societies, and as capital was raised by shares of 251. each; but the members have liberally relinquished their individual rights, and vested their property in the corporate body. Members are now admitted on paying an entrance fee of 157., but this sum with regard to country members has been reduced to 10%., subject to the confirmation of another general meeting. the objects of the association are just in themselves, tend to the public good in the due administration of justice, and are, moreover, calculated to promote the usefulness and respectability of the profession; they have received assurances that the present association will have the cordial co-operation of all the existing societies." The extract which we Even now our contemporary is projecting gave last week from the annual report of the a Country Solicitors' Club to be formed in Incorporated Law Society, satisfactorily disLondon, and inviting the names of subscribers poses of any question of rivalry or disagreement to be sent to him, between the two societies. See p. 69, ante. |