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Although one cannot buy justice in this country, one can purchase evidence, and one who is rich can make litigation so expensive as to deter the poor from an endeavour to obtain their just remedy. To these circumstances, then, far more than to the want of efficiency of the Court of Common Pleas was due the failure of the Act of 1854. The way to encourage applications for a remedy is to make the cases in which it applies thoroughly understood. People will not plunge into the rough waters of litigation on the mere chance that by swimming they will find land; they must see or think they see the other side. But such phrases as “undue preferences,” and “reasonable facilities,”—especially when there was judicial utterance that a mere private and personal inconvenience will not be sufficient to found a case under the latter of these heads, and that the general traffic arrangements of the company are to be considered,* and the like which make the indefiniteness even greater,have no
definite connotation to unaccustomed minds. As in cases of crime, it is found that a small punishment which will certainly follow the commission of the act is more deterrent than a severe punishment, which does not so certainly follow the criminal outrage ; so in the case of litigation, it will be found that a certain remedy, however incomplete in relation to the injury, will encourage the public in their applications for the remedy far more than a much more complete and stringent remedy, the procurement of which is a matter of doubt. The greatest reform of law which could be made, is one which would enable suitors to see their way. That was, however, the difficulty in relation to the remedy under the Railway and Canal Traffic Act, 1854, a difficulty which was appreciated by the Joint Select Committee, to whose report we have more than once had occasion to refer, for they recommended that the Act of 1854 ought to be explained, and some attempt is made in the Regulation of Railways Act, 1873, to explain its provisions in the direction
• Barret v. The Great Northern and Midland Railway Cos., 26 L. 8., O. P. 83;
1 C. B., N. S. 423.
pointed out by the Committee ; still, it must be explained much more fully before the public or legal profession understand it sufficiently to make applications to the Commissioners under its provisions. This difficulty was also appreciated by the Court of Common Pleas, for in many of their judgements they narrowed the meaning of the 2nd Section of the Railway Traffic Act, 1854, with a view to clearness, and with the view of making its provisions readily understood by the profession and the public.
In some ways they cut it down until it was not much more than the old equality clause which was made applicable to all railways by the Railway Clauses Consolidation Act, 1845.* Thus in one case they held that undue preference or prejudice on the ground of inequality of charge could only be complained of when the charges in question were made to persons using the same portion of the lines.f Justice Willes remarking that, “to bring the case within the Act it must be shown that the journeys are substantially the same.” And in another case, Chief Justice Cockburn remarked that “the obvious intention ” of the legislature “was, that there should be an equal rate of charges in respect of the carriage of all goods under the like circumstances," I which intention had already been carried into law in almost the same words as those of the Lord Chief Justice in the Railway Clauses Consolidation Act, 1845, or nine years before the passing of the Railway and Canal Traffic Act. These efforts upon the part of the judges to make definite what was indefinite, even by narrowing the statutory provisions are important, as they indicate that they were of opinion that any such vague statute was incapable of being wielded by any Court for the benefit of the public at the instance of private suitors. Under these circumstances what hope is there that the Railway Commission will be found more efficient as a
* 8 and 9 Vict., c. 20, s. 90. + The Caterham Junction Case (1 C.B., N.S. 410, 26 L.J., C.P. 161.) Harris v. Cockermouth and Workington Railway Company, 3 C. B. N. S. 693; 27 L. J., C. P, 162.
guardian of the public interests than the Court of Common Pleas proved itself to be, if it is to be only a Court like that from which its powers are to be transferred ? That is what the Commissioners have endeavoured to make it.
Now, we were under the impression that the probable action of the Legislature would tend in a different direction ; nay, we are under the impression that the Act can be read in quite another way from that in which it has been interpreted by the President of the Board of Trade and by the Railway Commissioners, and we will point out what that way is, and our grounds for regarding the construction which has been put upon it as erroneous and as being calculated to make the Act of 1873 almost as futile as the Act of 1854. We will further indicate the construction which, according to our opinion, ought to have been put upon the Act, and our reasons for thinking that had the Act been read in the way we suggest it would have proved thoroughly efficient, and the Railway Commissioners have proved thoroughly capable of dealing with some of the gravest evils which are at the present time incident to our railway system.
In 1865 a Royal Commission was appointed to consider the subject of railway communication, more especially with a view to diminution of charge and interchange of traffic, and they made a report in 1867, after a long and careful enquiry. There is one recommendation of that report, to which we would call particular attention. It recommends, as regards interchange of traffic as well as all other duties of railway companies, that wherever the public interest is affected, any person should be at liberty to memorialise the Board of Trade, and that the Board of Trade, after satisfying itself by a preliminary examination into the matter, that the complaint is well founded, should take the necessary measures to enforce the public rights by submitting the complaint for the investigation and decision of the proper court of justice. This seems to us a very important recommendation. The policy of the law seems to us to be to allow people to do as much for themselves as they can. Nothing could be
worse for the well-being of a community than that government should do everything for it. It is upon this principle that the government does not interfere in civil quarrels, but allows the parties to the difference to work out the remedy of their own grievance by an action at law. But there are many things that people cannot do for themselves. Thus, infants are protected by law during the period of their weakness or incapacity. Sailors are protected by law because they have been found to be unable to cope in the matter of wits with landsmen. So lunatics are an especial object of care, and not only is their maintenance provided for by the State, but their comfort and happiness is the object of attention to a board of inspectors or commissioners who visit all the asylums in the country. So the safety of women and children in mills and manufactories has become an object of governmental care, and the due provisions for the fencing of machinery are to by Government inspectors. There is one other instance which may be mentioned in which the government has undertaken to look after the interests of those who cannot pay a rational regard to their own affairs, and that is the Education Act. Now these being the principles of governmental interference we come to consider whether there is nothing analogous in the relation which exists between railway companies and the public and that which exists between any of the oppressed classes above alluded to, and those classes of persons who may tyrannize over them to the sacrifice of their interest and at the expense of their welfare. We have already seen that there is much in common between these two relations, we have seen that the crushing monopoly which is in the hands of railway companies is a power for evil and oppression which the law has attempted to deal with by various regulations, and with a view to which the Act, which is at present under consideration, was expressly framed. The question to be decided in this place, however, is whether the relation between the railway companies and the public is of such a nature as to make a direct interference
upon the part of Government, similar to that which has been alluded to above, necessary; or whether it is such that it may safely be left to those who suffer by reason of the railway monopoly to apply to a Court for a remedy. The question then is really this, whether the regulation of railways can be effected by a Court to which the applications of those who are aggrieved can be made, or whether such regulation should not be entrusted to a Court which would, at the same time, combine with its judicial functions inspectorial duties. We have already indicated that we do not regard a Court as capable of performing the difficult duties which would devolve upon it under any Act which gave them the power of regulating railways in these important particulars of preferences and facilities, and we have pointed out our reason for thinking so. To us the public who cannot determine what are undue preferences, unjust prejudices, or unreasonable facilities is in the same position that an infant is with regard to business transactions; to offer a remedy under such circumstances to the public by means of a legal process, is to our thinking upon a par with an enactment which, to ensure the humane treatment of lunatics in an asylum, gave them the power of bringing an action in a court, one of the judges of which was an able psychological physician. The passage from the report of the Royal Commission of 1865 recommended an inspectorial action of a government department (the Board of Trade) upon memorial of the person who felt injured, and we regret to say that that recommendation has not been acted on. The reasons that the Board of Trade give for this are follows:
1. It is matter of great difficulty to know what is and what is not a matter of pullic interest. The interest concerned may be that of a single trader, of a single trade, of a parish, a town, or a county.
2. Again it is scarcely possible to say what is a grievance. The matters to be remedied are want of proper convenience and accommodation, not individual acts of injustice, such as are ordinary subjects for prosecution in a court of law.