« PreviousContinue »
time, a craze for holding inquiries locally.* 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 of justice 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 adjudi. cating on differences between Irish Railway Companies, should hold the Inquiry in Ireland, unless the Board of Trade should, for special reasons, sanction its being held in England." Yet, under sec. 27 of the Regulation of Railways Act, 1873, the Commissioners have power to sit in such places as shall seem to them most convenient for the speedy dispatch of business.
responsibility to the strong public opinion of a Central Bar. It is possible that if such separation took place there might, notwithstanding the intimacy which railways have brought about between London and the provinces, be what Matthew Arnold calls the “note of provincialism" in their law. But there seems to be no real reason for holding that local grievances ought not to be locally remedied. But while we see every reason why the administration of the law should be local, there are many reasons why the making of the law should be central. And the mere similarity which exists between a judicial investigation and the inquiry which precedes a legislative act, is no ground why the rules which are applicable to the one should be applied to the other. Indeed there are evident advantages connected with the local administration and execution of the law which are not incident to the local making of the law. We are all more or less in favour of local self-government, but few of us believe in local Parliaments. But the propositions which are likely to be made in relation to Private Bill legislation by the present Government are almost certain to go in the direction of decentralizing and delegating the legislative functions of Parliament, and there are as we said grave constitutional questions behind this seemingly unimportant matter, to which it would be well that the public kept their eyes open. We have very ample means for forming a judgment as to what these proposals will be. The subject has been more than once the subject of Parliamentary Inquiry. A Committee investigated the question in 1863. Even then it was argued that the system of Private Bill legislation was unsatisfactory, and principally on the ground of the great costliness of the proceedings before Committees of Parliament. That Committee, after careful investigation, reported that no Court of Inquiry which could be devised would be so satisfactory to the public as Committees composed of members of both
Houses of Parliament. Again the subject was considered by a Joint Committee of the two Houses in the year 1869, and the result of their investigation was a recommendation that Bills, instead of being submitted to Committees of each House separately, should be referred to a Joint Committee composed of members of both Houses. This recommendation seemed to be viewed with favour by Mr. Gladstone's government in 1872, when the question was again brought under the notice of Parliament by Mr. Dodson, at that time the Chairman of Ways and Means, and now President of the Local Government Board, although it was not viewed with satisfaction by Sir William Harcourt, the present Home Secretary, who took part in the debate.
We have then to guide us, not only the reports referred to, but the discussion which took place in Parliament upon Mr. Dodson's resolutions. And when we remember that Mr. Dodson is now a member of the Cabinet, and that Sir William Harcourt, who seemed favourable to some change in the direction indicated by Mr. Dodson's resolutions, is Secretary of State for the Home Department, we may with some certainty assume that the measure to be proposed will be, for the most part, on the lines laid down in these resolutions. True at the time the then President of the Board of Trade (Mr. Chichester Fortescue) threw luke-warm, if not cold, water upon the proposals ; but the constitution of the Government of 1880 is very different from that of 1872.
The resolutions proposed in that year were as follows:“1. That in the opinion of this House the system of Private Bill legislation calls for the attention of Her Majesty's Government, and requires reform.
“ 2. That it is expedient to substitute as far as possible an extended and improved system of Provisional Orders for Local and Personal Bills.
“3. That Provisional Orders should be obtainable in
England, Scotland, and Ireland on application to a permanent tribunal of a judicial character, before which promoters and opponents should be heard in open Court, and the decisions of which should be subject to confirmation by Parliament.
“4. That in case of either House of Parliament admitting an appeal against the decision of the tribunal in the matter of any Provisional Order, such Provisional Order should be referred to a Parliamentary Tribunal composed, in the manner recommended in 1869 by a Joint Committee of the House of Lords and the House of Commons on the dispatch of business in Parliament, of members of both Houses.”
It is probably fair to assume that as much as it was possible to say in favour of these resolutions was said by Mr. Dodson in his able speech. He had been a member of the Committee of 1869, and he had made himself familiar with the subject. We will, therefore, gather the arguments in favour of the proposed change from his remarks, but at the same time we will refer to any argument which may seem to us to have any cogency, although it may have fallen from other speakers or been urged by some of the able writers who criticised the scheme in the Press. After a careful perusal of Mr. Dodson's speech, we find that his view is, that Private legislation necessitates judicial investigations, and that owing to the fluctuating nature of the constitution of Private Bill Committees, they are not capable of examining cases judicially. That, as a rule, the Committees are rather weaker than the Counsel practising before them, and that owing to these circumstances and the fact that the inquiry takes place in London, and not in the place affected by the measure, the proceedings are costly, and the results uncertain and unsatisfactory. In another part of his speech he more accurately compares the functions of such a Committee to those of an arbitrator, and when considering how the tribunal which he proposed to substitute for Committees should be constituted, he decides that it ought not to be constituted of judges, on the ground that "there could not be found amongst them the elements best constituted for a tribunal, inasmuch as the whole habit of their mind was to adhere strictly to precedent.” This is a somewhat curious statement from one who regards the investigations as one of a judicial character, and whose main objection to Committees is, that they are incapable of the duties devolving upon them by reason of their fluctuating constitution, or, in other words, that Committees are not bound by the precedents to which the minds of judges strictly adhere. A judicial inquiry not to be made by judges, that is what the proposal comes to; but, strangely, although not to be relegated to judges it is to be relegated to lawyers of ability and experience, whose minds, we should say, had been trained in the same school which makes judges adhere strictly to precedent. We are not, however, concerned with the illogicalities of the mover of these resolutions here, but wish rather to state, as fairly as we can, the arguments by which he sought to induce the House of Commons to sanction them. Mr. Dodson naturally endeavoured to support his proposals by a reference to the action of Parliament in relation to Election Petitions. There can, we think, be no doubt that at one time Parliament exercised functions which were not purely or to any great extent legislative; but were, in fact, judicial or administrative. And the acts by which Parliament endeavoured to separate those two functions were we think called for, and the result has been, in our opinion, beneficial to the public. Wherever the determination of the question of rights depends upon the application of fixed rules to various sets of circumstances, then the inquiry is a judicial one, and a mind stored with, and largely under the influence of decided cases, is the proper mind to decide the matter.