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itself. But jurisprudence has meantime to deal with very complex social relations, and as civilisation advances transactions become more varied and more complex. Complex and various as they are, jurisprudence must recognise them as the legitimate product of social devolopment. It would not proscribe a land system because it is intricate, any more than a zoologist would condemn a man because he was a highly organised human being, or cut off his legs and arms to bring him nearer to the ideal simplicity of the mollusc. The true function of the jurist, I venture to say, is to encourage the ‘development of every legitimate social relation which men from considerations of convenience have established amongst themselves. It is his duty at the same time to hold the balance between contending interests fairly, and so to mould the institutions of his country that one class or interest shall not obtain a preponderating influence inconsistent with the free exercise of the personal and contract rights of other classes of citizens. We do not propose to abolish landlordism, because to do so would be an arbitrary interference with the free action of individuals; but we do aim at facilitating the acquisition of property by tenants in order that men, who have sufiicieht capital both to buy their land and to stock it, may be enabled to place themselves in a condition in which their capital will be best invested. We do not propose to prohibit the mortgaging of land; because it is not for the advantage of the State that a man who can borrow at low interest by giving security should be compelled to borrow at higher interest, nor do we think that by paying higher interest for his loan he will have more money left to improve his land. But we do entertain, as a legitimate subject for the consideration of jurists, whether mortgages should be allowed to become permanent burdens on the land under the mischievous operation of the law of entail, because this is an incident
of the contract with which the State may legitimately deal, and only involves that partial restraint on the n1ode of exercising a right or entering into a contract which every member of society must submit to in return for the protection which society gives to him against arbitrary interference with his actions by others.
I have stated my views on this subject without reserve, because, while I appreciate the value of many of the projects of law reform which have been matured by discussion in this department of the Association, I also feel that if we value our reputation as a scientific association we may render good service to the cause of law reform by endeavouring to define the limits of its application. We may, at least in some cases, furnish a criterion by which persons less conversant with juristic studies may discriminate between progressive and retrograde changes in the rights and relations of civilised society. Where a law ceases to represent the habits, wishes, and tendencies of society it is already condemned ; where it is in accordance with those elements of public sentiment it is the duty of the jurist to recognise it, so as to give free play to the social forces which have brought it into operation.
II.—PRIVATE BILL LEGISLATION.
THE question as to how the time of Parliament is to be
saved, how it is to be enabled to devote itself to the
real work of legislation, instead of the quite unreal work of
overcoming obstruction, which is becoming more and more
the policy of opposition, has become a prominent one and
will demand a practical answer. The Statute Book grows large when there is leisure to fill it; and a great deal of active or “ascendant” foreign policy, or the garrulous rhetoric which is at the disposal of some domestic grievances, has the effect of limiting the legislative activity of Parliament. A busy country makes few books, a fretted Parliament adds little to the Statute law. That we require a great deal of legislation is the creed of the times, a creed which is open to a good deal of question, as has been shown by Mr. Herbert Spencer, but it is the creed which is believed in. There is very little confidence felt in healthy development, but much in the medicine or surgery of permissive or prohibitory legislation. Once, it was thought sufficient if the law protected life and property from fraud or violence; but its sphere has been largely extended, and there are few of the observances of life or conduct with
which it does not now interfere. Hence it arises that a ’
small amount of legislation is looked upon as a reproach to Parliament, and that the question how the time of Parliament can be economised so as to enable it to legislate enough, becomes a matter of importance.
Curiously enough, one suggestion which has been made to meet this difficulty, is that Parliament should cease to legislate in relation to Private Bills, that it should delegate its functions in that regard, and that those functions should no longer be exercised centrally, but locally. This is a very grave proposition, and involves some nice constitutional considerations. The endeavour to devolve many of the functions of Parliament upon Courts or Departments only indirectly responsible to the public, is not unknown to free forms of government, but its success is incompatible with the best forms of such an institution. And altogether apart from the question of the economy of the time of Parliament it is a grave question whether such a delegation of real legislative power is wise or expedient. But this is a suggestion which, we have reason to believe, will be made
the ground of proposed legislation at no distant date, and it is our object here to consider whether the proposed change will have the desired effect, and whether, if it is carried out, it will be an advantage to the public.
It is said that the Private Bill legislation occupies a great deal of the valuable time of Parliament, and that the results of that legislation are unsatisfactory. These are serious charges, and if they are true some remedy ought to be found for the evils complained of. Changes have from time to time been made in the method of the inquiry into the proposals for Private Bills, and it seems now to recommend itself to the Government that further changes in the direction we have indicated are advisable. If Parliament has no time in which to do the important work demanded of it in relation to General legislation, if that is due to the fact that its members have to devote much of their time to the service of Committees on Private Bills, and if these Committees do their work ill, ought not the time of Parliament to be saved by a delegation of those functions to a tribunal which would discharge the duties devolved upon it in a way which would be satisfactory to the public P That seems to be the argument which has led to the promise which we understand the Government to have given, that it will introduce a measure dealing with the method of inquiry into the expediency of Private Bills.
It is not very diflicult to form some idea as to the direction of the proposed reform. The advocates of a change say that members complain very much of the irksome character of the duties upon committee, and they assert that the relief which has already been given to them by allowing many things which were formerly done by Bill, to be done by Provisional Order, issuing either from the Local Government Board or the Board of Trade, has been followed by satisfactory results. There is too, at the present time, a craze forholdinginquirieslocally.* No doubt in many cases justice cannot be brought too close to a man’s door, and when injustice finds him out in his own home he ought to be able to secure a remedy without coming to London to seek it. There is everything to be said in favour of local courts, and you cannot make the administration ofjustice too local or intimate. The County Court System has been an enormous advantage to the litigating public. The argument against ready justice that it encourages litigation, which is not in itself a good thing, weighs very little with us. No doubt the wisest man is the one who does not go to law, but the wisdom of such abstention is due only to
the fact that in getting justice men have to suffer so much‘
injustice, or at least loss, that in the balance of convenience he is the gainer who lets his rights go, and foregoes the legal retaliation which is in his power. But that is a condemnation not of ready, but of unready justice. The law's delays, the heavy cost of the remedy, are the reproaches of the system, but they are reproaches less applicable to local than metropolitan justice. 'There are of course nice considerations as to whether the Judges of the High Court of Justice should be localised, whether they would not suffer from the separation from the other members of the Bench, and from the relief from the
' At the end of last session (session of 1880, No. 2) there were half-a-dozen questions asked in the House of Commons as to the reasons why an Arbitration between two Irish Railway Companies referred to the Railway Commissioners had not been heard in Ireland. Correspondence was asked for and other steps taken, although Mr. Chamberlain stated that the place of meeting was fixed at the request and for the convenience of the parties. Ultimately, on the 24th August, the House, at the instance of Mr. Gibson, passed a resolution to the effect that, "it is desirable that the Railway Commissioners, when adjudieating on differences between Irish Railway Companies, should hold the Inquiry in Ireland, unless the Board of Trade should, for special reasonsI sanction its being held in England.” Yet, under sec. 27 of the Regulation of Railways Act, I873, the Commissioners have power to sit in such places as shall seem to them most convenient for the speedy dispatch of business.