Page images
PDF
EPUB

inquiry is to be held by certain commissioners appointed from time to time under the Act. Clauses 3 to 6 deal with the appointment of, and inquiry by, the commissioners. Under the Bill as amended the commis. sioners are three in number-a sheriff, who will preside, and whose opinion on any question of law shall prevail, and two lay commissioners, taken from a panel of twenty, formed periodically every five years in the following way: Voting papers are sent to all conveners of counties and provosts of burghs having a population of over 15,000 inhabitants, with the request that each of these classes shall nominate two of their number to act as their representatives for the purposes of the Act. The result of the voting, as ascertained by the Deputy Clerk Register, is communicated to the Secretary for Scotland, who convenes a meeting of the persons so elected. This meeting of five-viz., the two representatives of the provosts, the two representatives of the conveners of counties, and the Secretary for Scotland-elect a panel of twenty persons qualified "by experience of affairs" to act as commissioners under the Act, with an additional reserve panel of ten. The persons so nominated shall remain in office for five years, and the Secretary for Scotland, when an inquiry is to be held, shall elect two of their number as commissioners for the particular inquiry. Such commissioners must have no local or personal interest in the matter of the proposed order. The Secretary for Scotland shall also request the Lord President of the Court of Session to select one of the sheriffs of the counties to act as chairman. The commissioners have the usual powers of taking evidence, examining witnesses on oath, requiring production of books, papers, plans, &c. They decide questions of locus standi. They shall sit from day to day till they finish their inquiry, and thereafter send in their report to the Secretary for Scotland with the evidence taken and the recommendations made by them. If they suggest any modifications on the order they shall submit a copy of the order showing such modifications. Clause 7 of the Bill deals with the issue and effect of the Provisional Order, and the safeguards for the further protection of opposing interests. If the report of the commissioners is wholly unfavourable the order will be refused in toto. If favourable, it may be granted subject to such modifications and recommendations as the commissioners may consider necessary. When modifications are recommended copies of the order must again be ledged with the Clerk of Parliaments and the Private Bill Office of the House of Commons and such other public departments as may be prescribed. The purpose of this is to afford the two chairmen of committees an opportunity of considering the amendments, and to secure that no powers inconsistent with the practice of Parliament are granted. After these safeguards have been observed a Provisional Order may then be issued by the Secretary for Scotland, having due regard to any recommendations by the chairmen, the Treasury, or other public department. It is then the duty of the promoters to serve a copy of such order upon the persons prescribed, together with a notice that the order will become final and have the effect of an Act of Parliament, unless within one month a memorial shall be presented to the Secretary for Scotland praying that the order shall not become law until confirmed by Parliament. In this connection there is the important provision that only those who have appeared at the local inquiry, or who have been affected by modifications on the original draft, are entitled to present a memorial. If no memorial is presented the order becomes final ipso facto, and has the effect of an Act of Parliament. If a memorial is presented the Secretary for Scotland must then submit the order to Parliament in a Bill, which is known and referred to as a Confirmation Bill, for the purpose of confirming the order. There is this important proviso, however, that if the Secretary for Scotland be of opinion that the memorial is unreasonable or vexatious, and that accordingly further inquiry is unnecessary, he may, after consulting with the chairmen of committees, refuse the prayer of the memorial, in which case the order becomes final as before mentioned. Clause 9 deals with the subsequent

within the scope of the Bill it will be seen that the Provisional Order system affords a means of providing both for the initiation of the measure locally and for the inquiry being held locally. At first a certain amount of disappointment was felt in Scotland by the more zealous advocates for reform, who were of opinion that the Bill would be so limited in its operation, and so hampered with restrictions and limitations, as really to deprive it of much practical value. Most people, however, on a closer examination of its provisions, recognized in it a statesmanlike effort to grapple with the difficulties which had hitherto blocked the way. As an experiment it was necessarily limited in its operation, but, if found by experience to work well, it was believed that it might be gradually extended. At all events, it was felt that it provided the essentials of a really workable scheme and would afford valuable experience as to the lines on which future extension of the system ought to run. The Bill was considered by Committee of the House of Lords, who aitered it in certain important details. Having been introduced late in the session, however, it got no further. In the Queen's Speech of the new session of Parliament prominent mention was made of a new Bill dealing with the subject, and in April last the Lord Advocate introduced a Bill into the House of Commons, which, in the main, is Lord Balfour's Bill, as amended by the Committee of the House of Lords. It passed the second reading, and was later in the session referred to a select committee. The debate on the second reading was noticeable in respect that while nearly every member admitted the need for reform, there was a good deal of free criticism regarding some of the practical details of the measure. The various objections stated will be dealt with later on, so far, at least, as they still apply after the amendments made on the Bill by the committee. The committee only completed their work at the very close of the session, when they issued a report dealing with same. It is here proposed to give a brief outline of the main provisions of the Bill as amended in committee. Some of the more important points will then be considered in detail along with objections which have been taken to certain of the provisions. Before these are dealt with reference may be made to two matters not directly connected with the Bill, but one of which is dealt with in the committee's report. It relates to the fees charged under the present system. On so liberal a scale are these framed that, after paying all expenses, there is a profit or over £32,000. In other words, they are about one and a-half times more than they need be-the balance, of course, being a direct tax on private Bill enterprize. The committee strongly recommend that those who are responsible for fixing these should materially reduce them. Another matter which would also be a source of great relief to promoters, if amended, and which might be amended immediately, is the present uncertainty as to the exact date when any particular Bill will be taken. It is no uncommon experience for parties, with their agents and witnesses from Scotland, to be kept waiting for a week or ten days before their Bill is taken. An arrangement under which the Parliament. ary agents should get forty-eight or even twenty-four hours' notice of a peremptory diet when the Bill was to be heard would remove a distinct hardship. At the outside, such a reform would only result in the members of the Parliamentary Committee having an occasional afternoon's holiday, but the inconvenience to them (if any) would be more than balanced by the relief which it would afford to parties. Whatever the opinion may be on the wider subject, there will be general approval of these two reforms, and the hope may be expressed that they will be given effect to in the near future. As already indicated, the Bill takes advantage of the present Provisional Order system, and in the first clause provides that where any public authority or persons desire Parliamentary powers in any matter for which they are at present entitled to apply to Parliament by petition for leave to bring in a private Bill, they shall present a petition to the Secretary for Scotland, praying him to issue a Provisional Order in accordance with the terms of a draft order sub-procedure in Parliament, and accordingly applies only to orders which mitted to him, or with such modifications as shall be necessary. Printed copies of the draft order must also be lodged at the office of the Clerk of the Parliaments, in the Private Bill Office of the House of Commons, and with all the public departments with whom, for the protection of public interests, private Bills are now deposited under the Standing Orders. The chairmen-that is to say, the Chairman of Committees of the House of Lords and the Chairman of Ways and Means in the House of Commons-take the draft order into consideration, along with any written representations made regarding it within a specified time. They may then send a report to the Secretary for Scotland, and if it appears from this report that either of them are of opinion that the provisions of the draft order do not relate wholly or mainly to Scotland, or are of such a character or magnitude that they ought to be dealt with by private Bill and not by Provisional Order, the Secretary for Scotland shall, without further inquiry, refuse to issue the Provisional Order so far as the same is objected to. It will be noticed that the procedure is compulsory, not optional, although apparently the promoters themselves would be entitled to represent that they wish to proceed by private Bill. In order to prevent delay and additional expense in the event of the promoters having to proceed by private Bill, it is provided that the notices already published, and the deposits made for the Provisional Order, shall be held to satisfy the requirements for similar procedure in connection with a private Bill in the next ensuing session of Parliament. In other words, the preliminary procedure up to this stage is the same whatever the decision of the chairmen may be as to whether the subsequent procedure is to be by private Bill or Provisional Order. If the Provisional Order is not unfavourably reported on as above, the Secretary for Scotland takes it into consideration, and shall, if there be opposition which he thinks not unreasonable or vexatious, or, if he thinks inquiry nccessrry, direct a local inquiry to be made as to the propriety of assenting to the prayer of the petition. This local

have been petitioned against. If petitioned against within seven days,
the Confirmation Bill is referred to a joint committee of both Houses of
Parliament, and the opponents are allowed to appear before this com-
mittee and oppose by themselves, their counsel, agents, and witnesses.
This joint committee comes in place of the separate select committee in
each House which at present deals with private Bills, and it shall not be
competent to refer the Bill to a select committee in either House. After
the hearing the joint committee prepares a report, which is then laid
before Parliament as under the present system. There is the further
important provision that the committee may award costs, which may
include all costs from the date of the memorial. Clauses 10 to 14 are
supplemental, and deal with the powers of the commissioners, appoint-
ment of officers and examiners, provision for general orders, fees, &c.
Such in brief are the leading provisions of the Bill as amended
and reported on by the committee of the House of Commons to
whom it was remitted. In an explanatory statement annexed to
the Bill it is claimed that it will carry out the following objects:
(1) It provides a local inquiry before a competent but not permanent
tribunal. No vested interests would be created. (2) It enables Parlia
mentary powers to be obtained without coming to Westminster if both
promoters and opponents are content, but yet the safeguards are adequate
to prevent the introduction of provisions inconsistent with the practice of
Parliament or the protection of public interests. (3) It preserves to an
opponent the right, subject to the liability for costs and to a veto by the
Secretary for Scotland and chairmen before mentioned jointly, to demand
a Parliamentary inquiry. (4) The Parliamentary inquiry, if demanded,
will be single, by a joint committee-not double, as at present, by a
select committee in each House. Assuming the principle of the Bill to
be accepted, it remains to be considered how far its objects are likely to
be achieved by the provisions above narrated. If it is to fulfil its object,
it must prove to be less expensive to the parties interested and more

satisfactory in its results than the present system. It may be true, also, that it would relieve Parliament of an oppressive burden; but the demand for change has not come from Parliament, but from the public, and it therefore fails to be considered mainly from their point of view. Under the present system it cannot be doubted but that the heavy expense operates hardly on individual promoters and opponents. The expense of appearing at a single inquiry is bound to be less than under the present system, which entails a double inquiry in London. But a most important point in favour of the local inquiry is that some estimate of the expense could be formed beforehand. It is not too much to say that in many cases at present neither promoters nor opponents have any proper idea of what they are entering on. The matter must be left in the hands of outside parties. The promoters themselves can exercise no thorough supervision over what is being done. They are never thoroughly in touch with what is going on. If they are a corporation or a public body they appoint a deputation (whose appointment and expenses are often the subject of a good deal of gentle banter on the part of their colleagues) to go up to London. A more hopeless or befogged body, however, than a Scotch deputation on Parliamentary business wandering about Westminster it is diDcult to imagine. Then as regards publicity. The leading Scotch papers no doubt report the inquiries, but such reports are necessarily limited to a column or two at the outside, and in minor cases to a paragraph. It is impossible that an accurate opinion can be formed on the merits of the case. The public know that a Parliamentary fight is going on, but that is about all. Under the new system this would be altered; parties or their advisors would get to know from an average of cases what the expenses were likely to be, and they would have a rough idea at the outset what they had to face. The preparation of the case would be more under their control and direction. The proceedings would be reported in the local newspapers. The force of public opinion would make itself felt to a much greater extent in approving or condemning a public body in promoting or opposing a Bill. There may be those who maintain that this is not an advantage, but the majority will be of opinion that the more openness with which matters of public interest are conducted the better. To lessen expense still further the suggestion has been made that the Parliamentary appeal might consist simply of a hearing on the evidence heard at the local inquiry, which would be practically the same procedure as in the case of judicial appeals to the House of Lords, where the case is argued on the evidence led in the Scottish Courts. It may be said that the present system might be altered in respect of the double Parliamentary inquiry without adopting the other provisions of the Bill, and that the second inquiry should carry with it the risk of expenses being awarded. It must be borne in mind, however, that the present Bill proceeds on the footing that there are two classes of private Bills-viz., those which would come under the Act, and those of such importance and magnitude that they would continue to fall under the present system. For the latter case of measures there is something to be said for the double inquiry. The second inquiry provides a check on possible injustice, and affords an opportunity of rectifying any mistake. Moreover, if it should happen that the second House erroneously throws out a Bill the promoters may bring it forward again in a future session. But the joint committee established by the Bill is an important departure, and there is little doubt but that even in matters which would come under the present system in the great majority of cases both promoters and opponents would be willing to take the judgment of such a committee. Alternatively the second committee might have power to award costs, as the appeal is for the benefit of the opponents, or its decision might be given on a hearing on the evidence already led. It is also said that parties might bring down experienced counsel and witnesses from London, which would entail even greater expense than at present. Here, again, the answer is that if the measure is an important one the promoters will be ordered to proceed by private Bill. The suggestion that local authorities would send to London for counsel and witnesses to appear in the class of inquiries which would be held under the Act may be dismissed at once. We have experience of inquiries in Scotland before the Railway Commissioners and other similar tribunals, and in such cases the idea is ɛeldom, if ever, entertained. From the point of view, therefore, both of promoters and opponents, it appears clear that the new procedure promises substantial advantages over the present system. It is designed to deal with a particular class of caɛes-viz., those of local, as opposed to those of outside, interest, and it provides machinery well adapted for this purpose. It may be asked, Why not make the Bill optional and leave it to promoters to decide whether they desire to adopt the new procedure or proceed by private Bill. The answer is that if it were optional on the part of the promoters it would not afford the protection aimed at for the smaller interests. Objectors to the compulsory element can only be influenced by the belief that they would obtain an unfair advantage by the adoption of the more expensive system. It is first of all in the discretion of an impartial tribunal, consisting of the chairmen of committees of both Houses, to decide whether or no the matters involved are of such importance and magnitude as to render the present system the better procedure to adopt. Both of these gentlemen must be of opinion that the matter is suitable for a Provisional Order, otherwise the promoters are ordered to proceed by private Bill. The committee on the Bill reported also that they were satisfied by the evidence of the chairman of committees, who gave evidence before the committee, that the task of discriminating between subjects which could be dealt with by Provisional Order and those which ought to be dealt with by private Bill, could be easily and efficiently discharged by them so long, at least, as the system is limited to Scotland. It may be said that confusion and doubt will be created in the minds of promoters, as, until the decision is given, they will be uncertain by which method they will be

[ocr errors]

ordered to proceed. There may be a few cases on the border line, but the decisions will follow recognized lines, and precedents will soon be created which will distinguish between the one class of Bills and the other. Of course, in the event of the local inquiry proving satisfactory in its limited operation as its supporters have little doubt of its doing, there may arise a desire that the area should be extended. But successive chairmen will naturally hesitate before overturning the precedents which have been formed, without the express authority of Parliament contained in further legislation. In connection with what matters are likely to come within the scope of the new procedure even now a fairly accurate forecast may be made. The words of the Act raise the question whether "the provisions, or some of the provisions, do not relate wholly or mainly to Scotland, or are of such a character or magnitude that they ought to be dealt with by private Bill and not by Provisional Order." A corporation or public body dealing with matters within its own jurisdiction, and affecting the interests of its own constituents or members, would appear to fall naturally within the scheme of the Bill; but in the event of the interests of outside parties being affected-as, for example, the proposed amalgamation of Edinburgh with Leith-such Bills would in all probability be considered as excluded. Again, the principal railway Bills-affecting, as they usually do, the interests of rival as well as connecting English railways-would appear to be beyond, though a short local line, if unopposed by other companies, might come within the Act. Another important question which arises on a consideration of a Bill is, whether there are sufficient safeguards to prevent the introduction of provisions inconsistent with the practice of Parliament and to protect public interests. A consideration of the Bill will show that these could hardly be increased unless every measure, opposed or unopposed, is made to come directly before Parliament. Indeed, objection might almost with more reason be taken to over-elaboration in this respect and the number of opportunities given for opposition, both on the part of Government offices and private opponents. These have already been set forth and need not be repeated. In the debate on the second reading objection was taken to the Bill by more than one member, on the ground that Parlia ment was delegating its duties and giving up the right which it now has of holding, at least theoretically, the ultimate decision on matters involved in private Bills. Of course, the objection only applies, if it applies at all, as regards unopposed measures. All opposed Bills come directly before Parliament, but it was pointed out that under the present system of Provisional Order a Confirmation Bill was necessary, and it was asked why, in these more important matters, should Parliament be asked to surrender the right of opposing which it now has. It is desirable to deal with this objection somewhat fully, as it was at the bottom of a good deal of the criticism indulged in in the debate on the second reading. The objection may be dealt with from two points of view-as a matter of constitutional law and as a matter of practice. The Lord Advocate dealt with the latter in his reply on the second reading. He pointed out that under the present system when a Bill is unopposed it does not go before a committee of the House, and the only check which the House has is exercised through the chairman of committees. That check is equally given under the scheme of the Bill. Under the present system, however, there is the third reading, after report by chairman of committees, but, as the Lord Advocate points out, for an unopposed measurə to be opposed in the House on its third reading was of so rare an occurrence as to take away any strength from the objection. But apart from the above argument, and as a matter of constitutional law, it may be questioned whether any prerogative of Parliament will be infringed by granting to the proposed tribunal the powers contemplated under the Bill. The functions of the court will be to determine how far compulsory powers for the acquisition of private property, and for the development of new enterprises and local improvements, can be properly conferred on promoters, each undertaking being considered on its merits and in relation to the local conditions. If this be a fair description of the work laid down for the new tribunal, it is difficult to imagine a more appropriate opportunity for Parliament delegating some part of its burdensome judicial functions-matters in which, as we know, they at one acknowledged they had no right to interfere.* In fact, it is rather curious to note as a matter of history that private Acts of Parliament originated in the mistaken action of the House of Commons in assuming duties to which they had no constitutional right. After expressly admitting by statute that they had no right to interfere in judicial matters, they shortly thereafter began to concern themselves with the petitions of private individuals to the Lords or Council, which in many instances were passed in the form of statutes, with the express assent of all parts of the Legislature. This was the beginning of private Acts of Parliament. If Parliament now embraces the opportunity laid before it, it will be adopting a course entirely in keeping with the ancient theory of the functions of the Legislature. The system of itinerant justices, under which England was at one time divided into circuits for fiscal and judicial purposes, and the system of recognition by sworn inquest, which is generally recognized as the lineal ancestor of trial by jury, both contained the conception of collecting in the district affected the evidence required for determination of local matters, and enabling a tribunal to give its decision on the spot. This principle, having gradually grown into familiar use in various civil matters, was afterwards applied in an expanded form to suits to try the right to land. In setting up the proposed new tribunal, therefore, it may be contended that Parliament is surrendering none of its proper functions, but, following a very ancient analogy, is helping to untie that great knot of centralisation which has choked the liberties of the provinces in countries less happy than our own.

*1 Henry IV,

time

There remains for consideration one other point-viz., the constitution of the proposed tribunal. The committee's report states that this is the only question of difficulty, and, apart from matters of detail, the only point on which there was any difference of opinion. It is easy to make criticisms on any proposal which may be brought forward in this connection. The essential matter, of course, is that the tribunal elected should consist of impartial and competent men of affairs having some local knowledge, and who are able to visit the locality affected. The committee were divided in opinion, the majority favouring the election of a tribunal outside Parliament, while an important minority were of opinion that it should consist of members of the two Houses of Parliament. Dealing with the latter suggestion first, its merits are obvious. It commends itself in respect both of the confidence which it commands and the preservation of Parliamentary tradition. In short, it would combine the chief merits of the present system with the benefits which are looked for from the new procedure. Unfortunately there are almost insuperable practical difficulties. One of the principal objections is that it is extremely doubtful if a sufficient number of members could be obtained for such service. Even at present members complain of the labour involved in acting on the committees at Westminster. In the opinion of the majority of the committee, to ask them to go on a sort of peripatetic commission over the country, holding inquiries in different districts, would be to ask the impossible. If such inquiries were to be held during session it would practically mean the disfranchising of their constituencies for the time being. Moreover, it would almost certainly cause dubiety as to time and inevitable delay and postponement when events of public importance fell to be discussed in Parliament. If the inquiries were to be relegated to the recess, the system would be equally unpopular, and in the event of an autumn session almost impossible. What weighed strongly with the committee also in rejecting the proposal was the possible extension of the system to other parts of the kingdom. If the system were to be confined to Scotland in all time it might be possible to get over the practical difficulties, but in the event of extension the difficulties would, it was felt, be overwhelming. The committee, however, framed alternative clauses, under which a tribunal might be formed of members of the two Houses, as recommended by the minority of the committee. They gave two schemes, and either proposal would recommend itself readily enough to promoters. It does not appear important which of these were selected, but it may be noticed that under both of them the number of commissioners would be four, either two of one House and two of the other, or three of one House and one of the other; in the latter case the single representative would act as chairman. Passing from the recommendation of the of the committee in favour of a Parliamentary tribunal, it falls minority to be considered what would be the most satisfactory outside tribunal. The panel favoured by the majority of the committee has already been explained-viz., by three commissioners, two of whom would be lay members chosen by the Secretary for Scotland from a panel of twenty, elected in the manner already mentioned, with a chairman nominated by the President of the Court of Session from among the sheriffs of Scotland. Objection has been taken to having a sheriff as chairman, partly on the ground that as sheriffs are practising counsel they might be employed in inquiries similar to those which they are called to adjudicate upon. Apart from this objection, which might easily be got over by their being debarred from acting or advising in any such matters, they appear well qualified to act on such a tribunal. It appears almost necessary that someone with legal knowledge should act as chairman to settle questions of law which may arise; and in fixed tribunals, like the Railway Commissioners, it is usual to have an eminent lawyer as chairAny objection on the ground that his sympathies and training are adverse to his taking a broad view on the consideration of public policy would be balanced by his being associated with two lay members qualified by experience of affairs. It may also be pointed out that in arbitration proceedings under the Lands Clauses Act the oversman appointed is in nearly every case one of the sheriffs, thus showing that they have the confidence both of the local authorities, railway companies, and private individuals. As to the lay members, it appears to the writer that the method proposed is admirably adapted for the end in view. It secures in the first instance a panel elected by men who possess the confidence of the electors of the country, while the individuals selected as commissioners for each particular inquiry are chosen by the representative of the Crown. It is absurd to suggest that there would be any difficulty in finding outside of Parliament men admirably qualified, both by training and natural endowment, to exercise the functions of Commissioners to the complete satisfaction of the parties interested. Whatever the outcome of the proposed legislation may be, nothing but good can accrue, so far as other parts of the kingdom are concerned. If the result of the experiment in the way of local inquiry is satisfactory in the limited operation which is given to it under the Bill, the public will have confidence in sanctioning the delegation of such work, and Members of Parliament will be relieved of an oppressive burden, and one which is scarcely compatible with their engagements in weightier affairs of the State. The essential principle of the measure is a local inquiry for local matters. In principle it is in harmony with the spirit of decentralization which is expressed in the recent Local Government Acts, and in practice it will give an immense stimulus to the enterprize of those who are ready to undertake local improvements.

man.

A discussion ensued, in the course of which
The VICE-PRESIDENT insisted on the necessity for caution in making

such a change as that which was advocated.

Mr. J. DAVIES WILLIAMS, LL.D. (Southport), expressed his belief that an extension of the Provisional Order now obtaining would be extremely valuable, purely from a public point of view; but he should be very much

interested to know how Parliamentary agents would regard the prospect of a large devolution of the business they at present enjoy.

Mr. J. H. COOKE did not think it would be advantageous to Scotland, and certainly not to England, to have such a change as that which was proposed. It was better to be expensive but certain about what one was doing than to try and make things more rapid and less costly with the danger of making them less safe and certain.

Mr. B. G. LAKE (London) entirely disagreed with Mr. Cooke. The time for the arguments he had used was past, and whether they liked it or not some system of devolution by Provisional Orders was inevitable. He was only too glad that Scotland had patriotism enough to try the proposed change, and sincerely hoped they would succeed. As the reader of the paper had said, such a trial could not do those in England any harm, but it must do a certain amount of good, in that the result would be seen there before it was sought to extend the change to England and Ireland, in both of which countries he thought it would be of great use. THE INEBRIATES ACTS.

Mr. GRANTHAM R. DODD (London) read the following paper upon this subject:

66

The Act

Homo sum: humani nihil a me alienum puto."-Ter. Probably some may at first be disposed to think that the subject on which I propose now shortly to address you is not one in which we are interested, but you will forgive me for saying that I think otherwise. From some cause or other inebriety has undoubtedly during the last few years greatly increased among women, more especially of the middle class. We are told that but have contracted. Possibly many of us have known cases in which the a very small percentage of inebriate women give up the bad habit they inebriety of one of the heads of the family has caused incalculable damage or injury. For instance, a man's wife suddenly, and without any apparent cause, becomes intemperate in her habits and neglects her children and home, with the result that the man, who may be an excellent husband, is driven away, and, finding life almost unbearable, frequently becomes insane or takes to drink. The wife of a man with whom I was intimate unfortunately took to the habit of drinking, and he frequently used to come to me in great despondency. I advised him, if possible, to get her into one of the Homes for Inebriates. He told me that when in her proper mind she had actually consented to this arrangement, but afterwards she refused to carry it out. There was, and still is, no legal first is what is called the Habitual Drunkards Act, 1879. An habitual power to compel her to do so. Three statutes deal with the subject: the drunkard is defined by this Act to mean "a person who, not being amenable to any jurisdiction in lunacy, is, notwithstanding by reason of dangerous to himself or herself or others, or incapable to manage himself the habitual intemperate drinking of intoxicating liquor, at times or herself and his or her affairs." It was limited to expire at the termination of ten years. By it the local authority-which in the schedule was defined to be the justices of the peace for the borough or city in special sessions assembled (as to a borough or city corporate having separate courts of quarter session), also the justices of the peace for the county or place in general or quarter sessions assembled (for the county, riding, division, &c., not being a county of a city, or town, or a borough or city corporate as aforesaid)- -was empowered to grant licences for any period not exceeding thirteen months to keep what was called a "Retreat,' and a duly qualified man was to be employed as the medical attendant of such retreat. No person having a licence to keep a house for the reception of lunatics could be licensed for such retreat. also contains various provisions with regard to the same. By section 10 any habitual drunkard desirous of being admitted into a retreat might make written application to the licensee of a retreat for admission in the form given in one of the schedules, and should state the time during which such applicant would undertake to remain in such retreat. The application was to be accompanied by a statutory declaration of two persons to the effect that the applicant was an habitual drunkard. The signature of such applicant was to be attested by two justices of the peace, and such justices should not attest the signature unless they had satisfied themselves that the applicant was an habitual drunkard, and that they had explained to him the effect of his application, and such justices should state in writing and as a part of such attestation that the applicant understood the effect of his application for admission and reception into a retreat. The applicant after admission, unless discharged or authorized by licence as thereinafter provided, should not be entitled to leave until the expiration of the term mentioned in his application, provided that had within two clear days after the reception of any person under the Act to such term should not exceed a period of twelve months. Every licensee send a copy of the application of such person for admission to the clerk of the local authority and to the Secretary of State. Any person admitted into a retreat might at any time be discharged by the order of a justice upon the written request of the licensee, if it should appear to such justice to be reasonable and proper. The Secretary of State was empowered to appoint an inspector, also an assistant-inspector. Every retreat had to be inspected at least twice in each year, and the Secretary of State had power under the recommendation of the inspector or at his own discretion return was to be made by such inspector. The rules for the management to order the discharge of any person detained in a retreat. An annual of the retreats were to be made by the Secretary of State. A judge of the High Court might also make an order to visit and examine any person so detained, and if he thought fit he could order the discharge of such Act also contains power to deal with various offences. It was also made person. A leave of absence could be obtained as therein mentioned. The applicable to Scotland and Ireland, with certain slight modifications. By 51 & 52 Vict. c. 19 (1888), after reciting the previous Act of 1879, which continuance of that Act and for the amendment of it; also so much of was then about to expire, and that it was expedient to provide for a

the second section of the before-mentioned Act as provided that such Act should be in force until the termination of ten years was repealed, and it was enacted in lieu thereof that the aforesaid Act as amended by that Act should remain in force until otherwise enacted. This enabled the licensees of a retreat to appoint a deputy during his temporary absence; also it enacted that so much of section 3 and of section 10 of the Act of 1879, which provided that the signature of an habitual drunkard applying for admission to a retreat should be attested by two justices of the peace having jurisdiction under the Summary Jurisdiction Act, and such attestation should be sufficient by any two justices of the peace. The Habitual Drunkards Act, 1879, and the Act now referred to were to be cited as the "Inebriates Acts, 1879 and 1888." By an Act of the last session-namely, 61 & 62 Vict. c. 60, criminal habitual drunkards are particularly dealt with; inebriate reformatories might be established by the Secretary of State with power to make certain regulations; certified inebriate reformatories could also be established; licensing powers were transferred to the county council; the period of the licence of retreats was extended; the time of detention was extended to two years, and one justice of the peace was substituted for two justices, as the attesting authority to an applicant's signature. The Secretary of State was empowered to make regulations in respect to the same. Criminal habitual drunkards in Scotland also might be dealt with, also those in Ireland. This Act will come into operation on 1st January next, and is to be construed as one with the Inebriates Acts, 1879 and 1888, and all three Acts are to be cited together as the Inebriates Acts, 1879 to 1898. However, not one of these Acts, as I have shown, can be utilized for the purpose I have in view. Coke says non compos mentis is of four sorts," one of which he refers to as a man "by his own vicious act for a time depriving himself of his memory and understanding-as he that is drunken." He also describes a drunkard as voluntarius dæmon. There can be little or no doubt that habitual inebriety is a mania, for in many cases persons suffering from it appear to have little or no control over themselves. Under such circumstances it appears to me but reasonable that in some way or other their friends should be legally empowered to interfere, and put some restraint upon them and their actions. As criminal offenders can now be committed or ordered to be confined in such asylums, why should not others be so also, provided every precaution be taken to prevent their being improperly confined? Upon the invitation of Lady Henry Somerset I have recently paid a visit to the establishment at Duxhurst, near Reigate, established by her ladyship, and it appeared to me to be a most admirable institution for the reception of female inebriates. Provision is there made for the reception of women of different classes of society. For the poorer patients so small a sum as 5s. per week only is paid, whilst ladies pay weekly at the rate of two guineas and upwards. All the inmates are expected to employ themselves in some work. Many are employed in outdoor work, such as the cultiva tion of tomatoes and various plants. I saw there two weaving machines, and so far as I can understand the goods turned out were of excellent quality. I learnt that at present there are fifty to sixty inmates, six of whom are in the social position of ladies. They live in small houses dotted about the estate, six in each house, under the charge of a Sister. There is a little chapel in which services are held every Sunday. Evidently the place is much appreciated. This home is not licensed at present, so there is nothing to compel the inmates to remain against their will. No less than 3,000 applications were made for admission within a year. I submit that a confirmed inebriate, especially a wife-for it mainly rests with her to make or mar the home-should be treated somewhat as a lunatic, similar forms being gone through for his or her removal to an asylum for the treatment of inebriates-that is to say, the medical certificates of two doctors should be supplied, and the reception order made by a judge or magistrate, and his or her consent or signature should not be requisite to confinement in such home.

Mr. W. T. ROGERS (Liverpool) objected to the proposed treatment of an inebriate as a lunatic. A man might be compulsorily shut up, and before he was released his business would have been ruined.

Mr. LAKE did not think an inebriate was likely to have much business to be ruined, but pointed out that Mr. Dodd's paper dealt particularly with wives. There was at present no way of saving a family from absolute ruin, because there were no means of compelling a person whom one knew to be incapable of managing her own affairs to be placed in proper care, so that she could be saved from evil habits, or at all events, if she could not be saved from herself, of saving others from the effects of her misdeeds.

The VICE-PRESIDENT quite agreed that the matter was one for extreme caution. Years ago there was, and possibly it still existed, a law on the lines advocated by Mr. Dodd. He believed the difficulty was that families in certain circumstances were accused, whether rightly or not, of improperly putting away persons as inebriates.

Mr. DODD said he had provided safeguards, and under the system he advocated the certificate of a magistrate would be necessary, as well as that of a doctor. Most of his remarks applied to women, because it was the woman who made the home or marred it.

The meeting adjourned until Wednesday morning.

BANQUET.

A banquet was held in the evening at the Albert Hall, at which Mr. WOODS presided, and amongst the 150 guests who were present were Lord Justice Vaughan Williams, the President and the Vice-President of the Incorporated Law Society, Mr. Brynmor Jones, Q.C., M.P., Sir A. K. Rollit, M.P., the Mayor, Sir J. J. Jenkins, M.P., Mr. D. Randell, M P., &c. Sir A. K. ROLLIT proposed "The Mayor and Council, Trade and

Coke on Littleton, 247 (a).

Commerce of Swansea," which was responded to by the MAYOR and by Mr. GRIFFITH THOMAS, the chairman of the Swansea Harbour Trust. Mr. H. H. GIBBONS gave the health of "The Houses of Parliament," Sir. J. J. JENKINS, M.P., and Mr. D. RANDELL, M.P., returning thanks. The CHAIRMAN proposed the toast "The Incorporated Law Society of the United Kingdom," the PRESIDENT responding and observing that of the whole body of solicitors only one-half were members. Mr. JOHN HUNTER gave the toast "The Bench and the Bar," remarking that solicitors might claim a common interest with the bench as several members of the bench had commenced life as solicitors and those who had attained to the dignity of the bench were not above putting their sons into the solicitor branch of the profession. Lord Justice VAUGHAN WILLIAMS, in responding, observed that his fortune had been made in Wales, and it was a pleasure common to every judge upon the bench to feel when invited to such a gathering as the present that they had not been deprived of their brotherhood with the other members of the legal profession. Mr. BRYNMOR JONES also returned thanks. The VICE-PRESIDENT proposed the health of "The Incorporated Law Society of Swansea and Neath," Mr. J. Mox EVANS, its vice-president, returning thanks.

WEDNESDAY'S PROCEEDINGS.

Mr. F. R. PARKER (London) referred to several matters in the
PRESIDENT'S ADDRESS.

He expressed himself in favour of the suggestion that those who occupied the county court bench should no longer be considered disqualified for promotion to the High Court. When the High Court judges had a great deal to do would it not be a good thing to associate with them in commission the county court judge of the district on assizes. Many of them were most able and learned lawyers. He did not agree with the president as to extending the county court jurisdiction. London lawyers did not regard the county courts with that affection with which they were looked at in the country. The initial costs were very heavy, and though the after expenses of trial were not so great, the cost on the whole was not so much in favour of economy. The commercial court was now greatly resorted to. In this there was practically no delay, and the expense of proceedings was vastly minimized. He thought this court opened an entirely new area in the conduct of litigious business. If anything the court was too rapid. No one should commence proceedings unless he was prepared to go to trial next day. With regard to legal education he was convinced that there was great danger of devoting too much time to theoretical study of the law, which had been carried to such enormous lengths that a great part of the actual practice of the law was necessarily shut out. Clerks had to leave the office during the last six months and to resort to the crammer so as to pass the final examination. He suggested that the examinations should return rather to what they were thirty years ago, and that it should not be compulsory to pass in a number of subjects which would not be required by the solicitor in after-life. Every man naturally took his own line of practice, and if he could tender himself for one or two subjects that would be very desirable. He quite agreed with the resolution as to the Long Vacation passed on the preceding day, but it did not go far enough. The question was what system would best serve the public interest, and that interest could not be served by stopping business for three months in the year.

Mr. GRANTHAM DODD referred to the subject of solicitors' remuneration, speaking against the present system of paying by the strict charge of 6s. 8d., and in favour of payment to some extent by results. He ave several instances of how badly the present system worked out.

Mr. W. J. MCLELLAN (Rochester) thought the clerk could not know the exact line he was going to take in practice, and the examination ought to test whether a man was well grounded generally in the law. Clerks who devoted themselves absolutely to the theoretical side of the law were looked at askance after admission.

Mr. J. H. COOKE said that the Long Vacation kept the solicitor out of his costs and was a danger to the successful litigant as the unsuccessful one might become bankrupt. Instructions should be given to the masters to deal with costs during the vacation.

Mr. C. H. PICKSTONE (Radcliffe, Lancs.) drew attention to one of the abuses of the Long Vacation. At present it was necessary to issue a summons for directions after appearance. He gave an instance where proceedings were commenced in August, and owing to the Long Vacation the action could not be brought to trial until January, 1899.

The VICE-PRESIDENT explained, with regard to the final examination, that there were numerous subjects-common law, equity, conveyancing, criminal law; probate, admiralty, and divorce; company law, and bankruptcy, and it would be utterly appalling that a student should be expected to pass a qualifying examination in all these subjects. Formerly every student had to pass a qualifying examination in two out of three of the principal subjects-common law, equity, and conveyancing-and to get a certain number of marks altogether. Now he had to get a certain number of marks altogether, but there was no qualifying number for any one single subject. Therefore the student had not to pass in all the subjects. He could make his marks as he chose, and the number of marks were so arranged that he ought in all probability to shew some knowledge of each subject, but not necessarily a sufficient knowledge to pass a qualifying examination. The consequence was that if a man has had greater facility for learning or greater reading in one subject than another he might make a considerable number of marks in that and throw in as a makeweight marks in a subject he was not thoroughly acquainted with and which he had not devoted deep study to.

Mr. W. W. KNOCKER (Dover) expressed his objection to the system of cramming.

Mr. B. G. LAKE asked why it should be so necessary to discountenance a clerk going to a crammer? If the clerk chose to work hard in learning the practice of the profession during the first three or four years of his articles, why should he not go a crammer and make up some what the technical knowledge necessary to pass the examination. Those who knew some of the crammers could say that there were no better lawyers than those gentlemen who made it their business not so much to practise as to discover the art of directing the reading of articled clerks in the lines most useful to them in after-life and ensuring their making a good examination. He should very much regret to see any curtailment of the work so admirably done by those whom he would call educationalists, rather than crammers. The Law Society itself might come under the definition of the term crammers, because they made a great point of training articled clerks for short courses, even inviting postal communications. With regard to criminal evidence, he could not take the view adopted by the president. The reform that that Act had introduced was, in his opinion, one which had been far too long withheld. He had no sympathy with the guilty man who, if he was examined, would almost certainly be convicted out of his own mouth, but he could not see why the opportunity should be taken from an innocent man of telling his own story, and if he was an innocent man nine times out of ten he would prove himself innocent. Counsel's story could not have the same weight with the jury. The VICE-PRESIDENT said it was difficult to define who were crammers. The Law Society had tutors to whom students went. Were they crammers? One of the difficulties of country clerks was that they had to do without any assistance of the kind, and it would be a great advantage to them to spend a short period in London before going up for examination.

Mr. H. P. CHARLES (Neath) thought that if cramming were allowable at Oxford and Cambridge, it was absurd to object to it in the case of articled clerks.

Mr. DAVIS WILLIAMS, LL.D., also spoke.

the present time the position is one of trust and responsibility far in advance of the conceptions of 1846. And, moreover-and this is a consideration of which I desire to make a particular point, as I have a quiet belief that it has been overloɔked-w› must not forget that, while all this has been going on, there has grown up around every county court centra a band of solicitoradvocates, drawn from the ranks of the ablest men in the district, who, I do not scruple to say, are capable of affording, and do afford, assistance to the bench which would do justice to any ordinary junior counsel. One of the commonest arguments against the weight of the pronouncements, and therefore the effectiveness, of the county court bench is that they are largely off. hand deliverances "without argument." Have we not heard the scoffer who makes his irreverent references to the time when the "length of the Chancellor's foot" was said to be the legal standard, and then goes on to hint that, whereas there was then but one Chancellor, and therefore a uniform standard for the time being, there are many county court judges and therefore divers curiously shaped feet? When I hear this view expounded, I long to take the exponent into one of our Lancashire court. I venture to think that, after he had spent a morning in listening to the sort of man we are now turning out-men who can and do conduct and ably argue, single-handed, half-a-dozen cases one after the other with a grip of facts that counsel seldom has the means of obtaining-he would unhesitatingly admit that there is no longer any ground for saying that the county court bench is handicapped for want of forensic assistance. Have these men played no part in the evolution of the county court system? And, lastly, in our review of some of the reasons why we may fairly ask for a fuller recognition of the claims of the county court, we must not overlook the important fact that the system is not of yesterday's creation. It has stood a fifty years' test, having in March last year celebrated its jubilee-an event, by the way, which, but for the absorbing lustre of another jubilee, would perhaps not have been allowed to pass so quietly into history. In these fifty years it has proved to the complete satisfaction of the commercial world its

Mr. PARKER repeated his belief that the present training was too much probity, its convenience, and its flexibility to the changes which the exigences confined to theory, and not enough given to practice.

COUNTY COURTS.

Mr. C. H. PICKSTONE (Radcliffe, Lancs.) read a paper entitled “County Court Let Justice be Done to it." There can be no doubt that the State fails in its duty to the citizen if it fails to provide a tribunal which shall bring "justice and right for the injury done him" within the reach of everyone. Nor can it be denied that there is yet much room for improvement in this direction-even in our own country. In face of this, and in face of the wide-spread dissatisfaction at present existing with the working of the assize system, and the very influential leaning towards the county court as offering the best channel for distributing that legal redress the effectiveness of which is so vital a factor in any system of sound government, it would seem that no apology is needed for again bringing under your notice the subject of the county court. And the present seems a particularly opportune time for further discussion, inasmuch as since Mr. E. J. Trustram's valuable paper at Sheffield last year, the Council has issued a report embodying substantially all the suggestions he then made. With these and many other suggestions in the air, there can be little doubt that changes are imminent, and if there is anything we can do or suggest which will tend to the fulfilment of that triune ideal of accessibility, economy, and despatch, which it is the dream of the law reformer to attain, I think we should not let this opportunity pass. Popularity is the essence of success, and it must strike the observer that the county court, as a tribunal, is not as popular as, and does not receive the encouragement and support, it deserves and is entitled to. It is not a question of mere supineness, it amounts to downright antagonism, fostered even by a section of the legal press, which seems to be guilty of the anachronism of regarding the county court, fron the standpoint of 1846, as merely a "debt-collecting agency." Antagonism on the part of the bar and from any body whose aim is the centralism of legal business in London is only to be expected; but I am amongst those who think that the idea of offering the citizen "centralism in London," as the best method of attaining the before-mentioned triune ideal, is quite intolerable. But the tide of antagonism is on the turn; aud there are not wanting signs that the time is at hand when the friends of this somewhat slighted tribunal may take heart, and, by concentra ing their efforts on this reform, secure for it that place in the state which in the opinion of many of us it is destined to occupy-viz., the court not merely for the collection of small debts, but for bringing within reach of everyone "justice and right for the injury done him." Of course, before one can successfully urge co-operation in increasing the efficiency of the county court one must be able to silence the inevitable query as to whether and how far the county court system-as it at present obtains-is deserving of or likely to justify the aspirations of its friends. I don't think anyone will have the temerity to deny that our existing juridical system is capable of increased efficiency. It seems hopeless to expect the increased efficiency, from the standpoint of provincial justice, to come from the High Court, and there are many reasons why, in any proposed juridical reforms, the county court should be required to bear some more important part. Year by year, as vacancy after vacancy has occurred, the county court bench is being strengthened by the acquisition of lawyers of such standing and repute, that the marvel is that such men should be found willing to accept a position so comparatively humble, so miserably paid, and yet withal so capable of working great good. We have of late had several striking and reassuring illustrations of the fact that the time has gone-I trust for everwhen county court judgeships were doled out as a solatium for services rendered to a cause other than the advancement of legal science. Before the lapse of many years we shall have a county court bench individually little inferior to, and collectively of greater national service than, the Queen's Bench. Again, Parliament has for years been quietly and steadily extending the jurisdiction and enhancing the dignity of the county court judges, till at

[ocr errors]

of a growing commerce entail and demand. When we really come to think of it, it is nothing less than wonderful to observe the elasticity of adaptation which has enabled it to receive and deal with the constant stream of new business which Parliament has steadily poured into it. And as yet it has manifested no sign of being overloaded or any symptom of impaired efficiency. So remarkable and effective has this elasticity proved, that even the Law Times, whose deliverances may, I think, be fairly adduced as typical of what I have termed the "antagonism of the press," was recently moved to a sudden and spontaneous reversal of policy, exclaiming in an outburst of enthusiasm: "In view of the deadlock so frequently occurring in the Queen's Bench Division, the absolute failure of the assize system, and the hopelessness of any reform, we have come to the conclusion that the profession will do wisely to direct its energies to placing county courts upon a satisfactory footing, with a view to the great bulk of the common law business of the country being done in those tribunals" (102 L. T. N. p. 453). I have reason to know that this tardy recognition of merit, coming from such a quarter, was received with intense satisfaction, and I have regretted to observe that its enthusiasm proved still-born. It is notorious that for some time past those bodies who voice the commercial needs of the country-the chambers of commerce-have been clamouring for a tribunal to supplant the discredited system of assize. They have persistently recognised the neces sity of an accessible and speedy tribunal for the determination of disputes. The system of assize-even as it obtains in the favoured county of Lancashire-has wholly failed to supply the want. "Chambers of arbitration have been tried and found wanting; and now the eyes of the commercial world are turned hopefully towards the county court as affording the likliest solution of the problem, culminating in the 1897 Bill which is now before the House. Believing, therefore, that, in the words of the Law Times, "The profession will do wisely to direct its energies to placing county courts upon a satisfactory footing," it has occurred to me to use this opportunity to offer a few observations in the hope that they may be the means of inducing further discussion which may afford material for further recommen. dations from the Council. The first thing that it occurs to one to criticise is the constitution of the Rule Committee, as it will be conceded that herein lies the germ of all reform. With all respect to the five able judges who at present form this committee, there can be no doubt that two or three registrars from the busiest centres would materially strengthen and assist it. The judges are necessarily but little in touch with the practical working of the rules, and have no conception of the divers straggling points registrars are from time to time confronted with, and sometimes, I fear, have to exercise their own discretion upon. Registrars are only mortal, and seeing how largely they are interested in the popularity or otherwise of their particular court, they have not been slow to recognise that, if they wish to preside over a virile court, they must popularise it by discouraging everything savouring of red tape, and facilitating in every permissible way the introduction of business. Strange as it may appear, there can be no doubt that, in normal conditions of local trade, the personality of the registrar largely determines the position of his court; and I verily believe that it would be a bad day for the general public were registrars to be paid, as is now suggested, a fixed salary, for their courts would necessarily then develop some of those forbidding attributes which are the bane of the district probate registries. And hereon I cannot help thinking what a beneficial result would be obtained by the simple expedient of making most of the numerous applica tions which have now according to the rules to be made to "the judge determinable by "the court,' ," which expression is defined by the Act to include and mean the "judge or registrar." For example, there are many things which under the existing rules require the leave of the judge. Cj. Order III. rules 6-12, 14, 17, 24; Order IV. rule 7; Order X. rule 10; Order XI. rule 3; Order XII. rules 6, 10; Order XXV. rules 7, 14, and 15, and probably many others. The registrar having no power, the judge is postered with a lot of ridiculously unsubstantial applications, which not

[ocr errors]
« PreviousContinue »