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mend a code of laws for the United Kingdom, both simplifying and consolidating; and it is hoped that such a measure will at once be laid before Parliament, to place on a satisfactory footing the present grievous condition of the laws regulating the union of man and wife.
Lex est ratio summa, insita in natura, quæ jubet ea, quæ facienda sunt prohibetque contraria.
IV.-RAILWAY ACCIDENTS AND THE RAILWAY
Regulation of Railways' Act, 1873," and while we admitted the importance of the interests which it was the object of the Legislature to protect, while we pointed out the excellent character of several of the provisions of the Act, we expressed our opinion that the Railway Commissioners would not have a great deal of work to do. So far as we know there has been no pressure of business at the West Front Committee Rooms, House of Lords, but we have on our desk before us two works which are intended to be of use to the public and the legal profession, in proceedings before this new tribunal, and it must have been the opinion of the authors of these works, that the Railway and Canal Traffic Act of 1873 was not likely to be a dead letter, otherwise they would not have taken the trouble to compile and publish these books. One or two words about them. Mr. Lely's has a fault of arrangement and a fault of typography. He makes a chapter of an abstract of the Report of the Joint
* " The Regulations of Railways' Act, 1873," by J. M. Lely, Esq., of the Inner Temple, Barrister-at-Law, Londor, 1873. The Practice before the Railway Commissioners," by R. Gordon Junner, Esq., of the Middle Temple, Barristerat-Law, London, 1874.
Select Committee on Amalgamation, of 1872, and as the Regulation of Railways' Act, 1873, was founded upon that Report the abstract will be useful. It ought, however, to have appeared as an appendix, instead of a chapter, and even if it did appear as a chapter, it ought not to have been placed between the text of the Act, and the General Orders of the Commissioners, which have been made in pursuance of its provisions. Again, Mr. Lely has thought it expedient to print the clauses of the applied Acts along with the text of the Regulations of Railways' Act, 1873, and as this saves distant reference it is calculated to be of use, but its utility would have been much enhanced had these portions of the applied Acts been printed in a different type from the sections of the act which applies them. As it is, one stumbles about in one's search, from section 6 of one Act to section 2 of another, and from section 2 to section 16 of a third. Had there been different types to guide the eye, time and trouble would have been saved to those of Mr. Lely's readers who may have occasion to use his work as a book of reference. Still the book is useful. He does not weigh the cases decided in the Court of Common Pleas and the Court of Session, but he marshals them with intelligence, and some of the notes to the Act contain a good deal of information. Mr. Junner's book is entitled “The Practice before the Railway Commissioners," but in its general construction and scope it very much resembles Mr. Lely's work. It contains, however, the judgments in the two cases which have been decided by the Commissioners, and is much more full in regard to the rights of passengers, to the receiving and forwarding of traffic, stational arrangements and parcels, than the last mentioned work, although we are not certain that all the law Mr. Junner's book contains really belongs to the jurisdiction of the Railway Commissioners. We fail to see what they have to do with questions under the Carriers Act, as to the amount of luggage a man may carry, as to the question what constitutes personal luggage, as to the measure of
damages for the loss of goods, and twenty other subjects of which Mr. Junner learnedly treats. Still this book has its merits, and we have such a thorough mistrust of railway companies, such a deep-rooted conviction that the exercise of their monopoly is calculated to do much harm to the public, that we hope that the business before the Railway Commissioners may be so great that both these books may come to early second editions. In neither of these works do we find much elucidation of the Act of 1873, and both authors seem to think its provisions are so clear that he who runs may read. We, however, entertain a somewhat different opinion, an opinion which induces us to believe that the writer of an article on “The Power of the Board of Trade in Relation to the Prevention of Railway Accidents," which appeared in the Solicitors' Journal and Reporter, of the 28th of March last, is wrong when he asserts that the Board of Trade is "the only tribunal which has at present any jurisdiction in such matters." We agree with him, however, in his conclusion that “when once a railway is opened the powers of the Board of Trade appear to be wholly insufficient for the protection of those who travel by it (the railway), for although they may authorise inspections of the line, buildings, and carriages, there is no provision for compelling the Company to repair any defects therein." pears to us, after a somewhat careful reading of the Regulation of Railways Act, 1873, that there is a tribunal which has some jurisdiction as to Railway Accidents, and that that tribunal is the Railway Commission. It is true that the Court of Common Pleas did not so construe the Railway and Canal Traffic Act, of 1854, but we contend that in many particulars their constructions were narrow and erroneous, and that the very unwillingness which the Courts of Common Law shewed to have anything to do with what they called such “ anomalous" jurisdiction, is an indication that they were right when they confessed their utter inability to carry that Act judiciously into effect. The words of the Statute are that every Railway Company “shall according to
Now it ap
their respective powers afford all reasonable facilities for the receiving, forwarding, and delivering of traffic, &c.” (Section 2 of the Act of 1854, and section 11 of the Act of 1873). The term traffic is said by the Act (section 3) to include passengers and their luggage. Now can it be said that a Railway Company is giving due facilities for the receiving, forwarding, and delivering of traffic, if it conducts its traffic in such a way as to cause an accident, if its permanent way or rolling stock is in such a condition that an accident must necessarily occur? Is it a due facility to a passenger to deliver him dead? And if it can be proved that the arrangements of the Company are of such a nature as, in all probability, to cause an accident and that accidents do happen, is it not a contravention of the Act, and is it not a matter peremptorily calling for the interference of the Railway Commissioners ? It appears from all the literature of the subject that this tribunal was created for the protection of the interest of the public, which were jeopardised by the crushing monopoly of Railway Companies. Are not safety of life and limb sufficient interest to call for protection ? And does not the fact that the ordinary Common Law remedies of action for personal injuries in case of careless damage done by a Railway Company, or under Lord Campbell's Act in case such carelessness results in death, are not sufficient to deter Railway Companies from breaking limbs, or from neglecting the proper precautions for the security of life, prove that this was exactly one of those cases contemplated by the Act, a case in which no remedy existed, or in which only an inadequate remedy was at the disposal of the public ? It may, perhaps, be objected to this reading of the Act that the term “ facilities” really means only “little furtherances,” and that to say that if a railway company kills a person it is not affording him due facilities, is to abuse language, and to force words to bear meanings which do
do not belong to them. But we would submit that just as the greater includes the less so the predication of the less in many cases takes for granted the greater. If a man
stipulates for a little furtherance he may be supposed to stipulate that no great obstacle will be placed in his way. And our reading of the Act induces us to believe that the intention of the Legislature was to compel Railway Companies to give all those uncovenanted mercies which were found so necessary for public convenience and safety, and when it mentioned the little furtherances it must have been taken to mean the great also. But can the public have the little furtherances of convenience (and the Court of Common Pleas interfered to make a junction station more comfortable for people waiting there) without safety ? Are not safety and convenience inextricably associated, and in compelling the latter would not the Railway Commissioners be compelling the former also ? Does not the fact that an accident happens from carelessness or from wearing out of the plant or rolling stock of a company prove that that company is not in a position to give due and reasonable facilities to the public ? This is a matter which is urgent at the present time. Railway accidents are horribly frequent. The Board of Trade, by its Circular, has shown that it is aware of the fact, and yet, although the Board of Trade has a power to move in the matter under this very Act, has a power to appoint some one-say one of its railway inspectors—to apply to the Commissioners under the 6th section, and who may allege a contravention and violation of the Act in that passengers are not safely and securely carried ; although the Board of Trade has this power, a power which if exercised would, we feel convinced, do much to put an end to railway accidents, they have not upon any one occasion exercised it. They maintain their policy of masterly inactivity except when they circularize Railway Companies and elicit sharp contradictions from angry chairmen. The public, however, is too anxious as to the comparative insecurity of railway travelling to put up with this long. But supposing our reading of the Act of 1873 is erroneous, there can be no doubt that legislation is called for. Would it not, in the event of the Government being forced to move