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Much more might, no doubt, be said against the scheme proposed by Mr. Dodson than we have said. Our object has been rather to show that the present system is not open to the condemnation which has been bestowed upon it. We have, as we pointed out, some means of foretelling what the proposals of the Government will be ; but perhaps it is better to wait until these are definitely before us, before entering on criticisms of details which may not improbably be modified. If the proposals to be made resemble those which were made, we call in aid the words of the President of the Board of Trade at that time (Mr. Chichester Fortescue, now Lord Carlingford). He said: “ His honorable friend said that the decisions of the present tribunal were unsatisfactory, but the parties concerned in these decisions had great faith in its uprightness and impartiality; and whether as much could be said for the tribunal which it was proposed to substitute was, he could not help thinking, rather doubtful. It did not appear to him, he must confess, that a satisfactory plan had as yet been submitted to the House for the creation of such a tribunal.” And Mr. Hardy, in the same debate, said, that “ questions of such enormous importance ought never to be delegated to any body of men outside the House, however learned and judicious they might be.” This view was also taken by a writer in the Pall M all Gazette (8th March, 1872), who argued strongly against the decentralization and delegation of Parliamentary functions involved in the proposals. There are, indeed, various objections to bureaucratic legislation. The safety of our constitution is that it is exercising its functions in open Parliament by the representatives of the people. But any such change as that proposed would be a departure from that principle—a principle which has already been too often lost sight of. Already the State Departments are too powerful; already important matters are settled by cor
respondence between secretaries and parties, or at an interview in some room at Whitehall; and these settlements are rarely satisfactory, and are transacted without the direct knowledge or sanction of the public, or those who represent them in Parliament. But it seems that this system and that of local and skilled inquiry is extending, and is in high and authoritative quarters looked upon as the panacea for all difficulties in relation to Private Bills. But if, as we said before, this reasoning is true of them, it ought to hold with regard to public measures. Indeed, the distinction between private and public measures is misleading. In many cases Local Police Acts contain a code of laws which are as stringent in a certain town, or district as those which are enforced by any general measure, and affect not only the residents of the town, but every citizen who may come within the jurisdiction. And is not an Act for Scotland or Ireland local in the same sense as a local Police Act or Metropolitan Management Act? Why, then, if that is true, and there is anything in the contention of those who support Mr. Dodson’s resolutions, should not some concessions be made to the Home Rulers? Why should we not establish a local and intimate Parliament in Edinburgh P
But on the question of the proposed tribunal we have a sort of indirect experience. The tribunal must, Mr. Dodson said, have the confidence of the public and the parties. Now precisely the same thing was said in 1873 when it was proposed to establish a Railway Commission. The names of the Commissioners were mentioned in, and gave satisfaction to, the House of Commons before the Regulation of Railways Bill, 1873, was passed. The Commissioners are able and experienced men, but nowithstanding their ability and experience, they have failed to secure the confidence of the railway world. They have, it is true, the confidence of the public, if that is shown by the presentation of petitions
to Parliament praying for an extension of their powers, but they have it not, if it is shown by applications to them, to exercise the large powers they possess. It is well-known that the Railway Commission is a failure; that the Commissioners have next to nothing to do, and that at or before the end of 1882, the tribunal will have to be reconstituted. Now that is what would take place in relation to the proposed Private Bill Tribunal. It would in all probability have the effect of stopping legislation, of crippling enterprise, of retarding the natural development of the country. The meddling with this matter is the playing with an edged tool. It would, we cannot doubt, be found that inquiries before it were as long and as expensive as heretofore ; and a time would come when the new court would be found to be as unsatisfactory as the Court of Referees proved itself, and there would have to be more legislation, new efforts to deal with the problem which Mr. Dodson’s scheme would leave worse than unsolved. If that time should come,
nothing better can in our opinion be done than to revert to
the present system, which is satisfactory to those who are most interested in the success of the method, and to those who are most familiar with the procedure. Any change would be rash and ill-advised, and would lead only to dissatisfaction, and probably in time to the retraction of legislation which is uncalled for, and which could produce no benefit to the community. X.
III.——PROFESSOR HOLLAND’S “]URISPRU-
ALL those who have any regard for the form of Law as . distinguished from its substance must have welcomed with pleasure the appearance of Mr. Holland's book, for apart from the extreme rarity of a work on this subject in the English language, its author's reputation as a master of Jurisprudence, his intimate knowledge of that mighty system of Law upon which all jurisprudence must necessarily be based, and the ardour with which he has always advocated the improvement of the form of English Law, are sufiicient guarantees of the quality of the work. It is needless to repeat here that Mr. Holland has in no way belied his reputation. The work—and no higher praise can be given to it—is a worthy successor of its great forerunner, Austin’s Jurisprudence, and in many respects it is superior to it. Austin’s work is avowedly incomplete and fragmentary, and the very care with which he pursues his investigations, the very force with which he impresses his conclusions upon us, tend to repel rather than to attract the student. It is a book, when once mastered, never to be forgotten; it is infinitely valuable, not only as a treasurehouse of legal ideas, but as the first successful attempt to create a nomenclature for our Law, which should be neither eccentric like that of Bentham, nor unscientific like that in popular use. In spite, however, of these great merits, it is marred not only by its accidental incompleteness, but also'by the long digressions and frequent repetitions which seem to be inherent in Austin's style and mode of thought. Mr. Holland's Treatise, though it contains less than a fifth of the matter contained in Austin’s, l1as the advantage of being a complete work, and if we also take into account its superiority in point of system and style, it is evident that from a literary point of view, it is a great improvement on its predecessor. At the same time it must not be forgotten—and Mr. Holland would, I am sure, be the first to acknowledge it——that the labours of Austin have prepared the way for Mr. Holland and considerably lightened his task. Without Austin not only would he have had to contend against all the difficulties which are the necessary portion of every explorer in untrodden fields, and which were in fact Austin’s portion, but he would also have had Austin’s reward—the reward of most pioneers in science—contempt and neglect. It was Austin, in short, who broke up the barren soil upon which Mr. Holland has been enabled to sow his seed; it was Austin who laid the strong foundation upon which Mr. Holland has been enabled to build his graceful superstructure.
The improvements, however, which Mr. Holland has introduced are not merely in point of form. Much of the matter is entirely original; as the author tells us in his preface, he has thought out the subject for himself, owing little or nothing to the speculations of modern continental jurists. His leaning to Roman Law is of course manifest ; it were impossible that anyone who had studied it so long and so carefully as Mr. Holland should not be potently impressed by it, but I do not find that he is blind to its defects, and on the whole it cannot be said that he is unduly influenced by it. In one case especially—in the adoption of Private and Public Law as the primary division of all Law, he most successfully defends the Roman method against the criticisms of Austin.
One welcome feature in the book is, that the majority of the illustrations are taken from English Law. It may therefore be with advantage considered in the light of a formal science not of all Positive Law, but of English Law, in short, as a contribution to the formation of an English Code.