HISTORY OF PRIVATE-BILL LEGISLATION.* A History of Private-Bill Legislation sounds
rather dull ; but Private-Bill legislation has of late been the subject of so much discussion in Parliament and the Press, and is so likely to attract the early attention of a reformed Parliament eager to rid itself of extraneous burdens, that at the present moment Mr. Clifford may be congratulated on the timely appearance of his work. Two volumes are, perhaps, a more than adequate allowance for the subject; but happily only one has appeared at present, and the greater part of that consists of an Introduction which cannot be said to be dull. In Mr. Clifford's hands, indeed, the subject becomes interesting, and is full of novelty for most people, including, as appears from Mr. Pemberton's article in the Nineteenth Century this month, those who have had most to do with Private Bills. To him, as to most people, it will be news that the time of Parliament has been largely taken up with Private Bills "from the earliest times to the present day." Indeed, in old times, the meeting of Parliament was quite as much, if not more, important for the redress of private wrongs or the help of private persons than for the transaction of public business and the passing of public Acts of Parliament. So long ago as 1280, in the reign of Edward I., six hundred years ago, Parliament found the pressure of private petitions so great that it had to pass a general order referring all petitions for the redress of private wrongs to the Chancellor, or Exchequer, or the ordinary Courts. Yet, even at the present day, or at least as late as the Queen's Accession, Parliament appointed, in the same form as was used five hundred years ago, in the reign of Edward receivers and triers of petitions, not only from Great Britain and Ireland, but even for " petitions de Gascoigne et des autres terres et pays de par la mer et les isles." These old petitions were rather for relief in the nature of judicial than legislative assistance, so far as they needed legislative help, and for what would now be called personal, rather than local, Acts. But it was not till the latter half of the present century that the hulk of purely personal Private Bills was reduced, and the Local Bills assumed the predominance in Private-Bill legislation which
• A History of Private-Bill Legislation. By Frederick Clifford, Barrister-at- Law. 2 vole. Vol, I. London Betterworths. 1885.
they now hold,—not that Local Bills were unknown in early times, as Mr. Pemberton seems to suppose when he says that Private-Bill legislation was of no public importance till the end of last century. On the contrary, as early as 1314, in the reign of Edward II., a petition for relief in the nature of a Private Bill was presented by the Commonalty of London, "especially those of East London," for the repair of the bridges and cause- ways on the Stratford Road, which were in such bad condition that " nul homme ne put bonement passer, ne vitale, ne autres biens par in eerier, par qui le pople avandite eat molt grave et in vile de Londres durement encherie." The roads of Oxford- shire also formed the subject of an Act as early as 1421. The prohibition against weirs on rivers, which holds a prominent place even in Magna Charta, appears again and again in quasi- Private Bills for the Severn, the Thames, and other rivers, from 1285 downwards. A Canal or Waterworks Bill was passed in 1571 to authorise the City of London to bring the river Lea by a new cut to the neighbourhood of the City. In 1541 Gloucester obtained an Act authorising the Corporation to repair the ancient conduits, and also find a new supply of water. In 1543 a similar Act was obtained by the Corporation of London. Under an Act of 1585 Sir Francis Drake brought water to Plymouth from Dartmoor. As early as 1566 private enterprise was authorised by Act of Parliament to execute works of public improvement, when John Baptista Castilian, a Groom of the Chamber, was authorised to reclaim Plumstead Marsh, receiving one-half the land as a reward. Tavern-licensing began under Act of Parliament in 1552. A Sanitary Act was passed to prohibit nuisances from the killing of cattle and the scalding of swine in the City of London on a petition from the parishioners of St. Faith's and St. Gregory's complaining of the " corrupt airs engendered thereby" as early as 1488. Private-Bill legis- lation, therefore, whether local or personal, is no new thing; and no doubt it has been in its day a very excellent thing. In old days the interference of Parliament, even in private quarrels, was beneficial. It redressed grievances which, owing to the greatness of the offenders, could be redressed in no other way ; it mitigated the rigour of the common law, or provided for defects in the powers of the Court of Chancery and the Ecclesiastical Courts by private Estate and Divorce Acts when no other power could interfere, and when public opinion was not ripe for inter- ference. It fostered and protected private enterprise, and enabled it to override selfish opposition at a time when, outside half-a- dozen large towns, there was no public spirit, and the best schemes for the public welfare were liable to be defeated by any less power than that of Parliament. But, to argue from its antiquity, or from its utility in times past, that the system of Private-Bill legislation is a good thing per se here and now, is a very long step, which Mr. Clifford indeed takes, but in which every dis- interested person who considers the matter from outside will decline to follow him. The history of Private-Bill legislation may indeed be considered, in one respect, as a perpetual struggle of Parliament to be rid of the harden of it. In 1280, it made, as we have seen, a vigorous effort to get rid of merely judicial legislation. But the burden still continued, and as late as 1391 petitions were still presented to Parliament, to enforce claims to land of which the Common Law would not, or could not, take cognisance, and which were referred to Chancery. Indeed, the growth of the Chancery jurisdiction was aided, if not created, by the reference to the Chancery by Parliament of legal cases which could not be dealt with at Common Law, and the Court of Chancery may, therefore, be regarded as the first attempt of Parliament in the direction of devolution.
As soon as one kind of private legislation was got rid of, another kind grew up. Bills of attainder, and Bills for reversing attain- ders, were the outcome of the Wars of the Roses and the religious differences of the Reformation. Estate Acts, arising out of the difficulties of tenure, began as early as the reign of Henry VI. Naturalisation Acts began even earlier, as there is one case in 1295 ; but there was not another till the reign of Henry IV., after which date they began to grow more frequent. Divorce Acts began after the Reformation (before which divorce was practically easy) with " an Act for disannulling of the marriage between the Lord Marquis of Northampton and Lady Anne Bouchier ;" but it was not till after Lord Ross's Divorce Act in 1670 that Divorce Acts became common. Local, as distinguished from personal Acts, we have already noticed. Inclosure Acts began in 1606, but even during the reign of Anne there were only two inclosures by statute ; they became more common in the reign of George I., and in the reign of George III. they were more numerous
than Railway Bills are now. Bills for the reorganisation of charities have also been passed from time to time, but the greater proportion in the Georgian era. All these Bills were ex- pensive enough in character, but, with the exception of Divorce Bills, they were unopposed Bills, and, therefore, cost nothing like the time or the money which Private Bills now cost. Yet it was on account of the enormous cost and delay of these Bills, and the occupation of the time of Parliament with unworthy objects, that Parliament gradually devolved those proceedings on other tribunals. Thus Estate Acts were rendered to a great extent unnecessary by the passing of Lord Cranworth's Act in 1860, Lord St. Leonard's Acts, the Settled Estates Acts, and now the Conveyancing Act and the Settled Land Act. The result is that while Estate Acts in Parliament in the sixty-five years, 1801 to 1866, numbered 2,000, in the seventeen years, 1867 to 1884, there were only 130, and the number is diminishing and ought now to cease altogether. So from 1801 to 1865 the number of Naturalisation Acts was 400; between 1867 and 1884,owing to the process of naturalisation being devolved on the Home Office and to the amendment of the law as to aliens holding property, there were only 13. Divorce Acts from 1805 to 1857 numbered 196. From 1860 to 1884 there were still 5, owing to the absurdity that British, i.e., other than Irish, subjects in Ireland must still be divorced by statute; but otherwise the work of Parliament devolved on the Divorce Court. Charity Private Acts from 1801 to 1865 numbered 600. Since 1860 the Charity Commission, and the Endowed School Commission now fused with it, have obviated the necessity of going to Parliament ; and though some bodies, like the Sheffield Town Trustees, still prefer to spend their money in Acts of Parliament, and though, except in the case of educational endowments, the powers of the Charity Commission are limited, yet now an Act of Parliament is simply a luxury indulged in only owing to solicitors' love of costs. A similar reduction has been effected in regard to things ecclesiastical, such as church building, by the establishment of the Ecclesiastical and Church Estates Com- missioners. But perhaps the most conspicuous instance of saving time, money, and property by the adoption of the principle of devolution, is that of the Enclosure Acts. These had risen from 2 in the reign of Anne, to 16 in the reign of George I., 226 in the reign of George II. (33 years), and to 336 in the 60 years of George III., dealing in all with at least 6,000,000 acres. In 1845 the Enclosure Commissioners, now -the Land Commis- sioners, were appointed, and though more than 600,000 acres have been enclosed since, the enclosure was done without troubling Parliament and without the enormous costs previously incurred. Moreover, now that it has parted with its direct con- trol over individual enclosures, Parliament has found it much more easy to deal with principles and general legislation on the subject ; so that now enclosures are rednded to a minimum, and the public interest is effectually safeguarded in those that are made. if these acts of devolution had not been successfully accomplished, it is awful to think what hundreds of thousands of pounds would have been spent in useless and unproductive expenditure, and how much greater the arrears of Parliament would have been in both public and private business.
If, however, Parliament is to cope successfully with the ever- growing demands of public legislation, it must carry the prin- ciple still further. While Parliament kept the control of divorce, only the richissimi uomi?zi could procure divorce. Women, how- ever rich, were practically as unable to obtain divorce as the poor. An uncontested divorce case coat at least 2800 ; a contested one, £8,000. Since the Divorce Act, if there has not been absolute, there has been a far greater approach to equal justice between the sexes and for all classes; and it is impossible to doubt that happiness and morality have alike been benefited by the change. The saving of money and the benefit to the country caused by the substitution of the regular and inexpensive action of the various commissions named for the interested and spasmodic and costly action of Parliament, is simply enormous. Why should not the pro- cess be extended to the railway, gas, and water, dock and harbour, and other purely commercial or municipal matters that now waste the time of Parliament and the money of the nation, merely to swell the income of a clique of surveyors, solicitors, and banisters ? Mr. Clifford's answer, like Mr. Pemberton's in the Nineteenth Century, appears to be twofold. First, he says, in effect, Look at the enormous capital which has been invested in undertakings under Parliamentary sanction, which could not have been undertaken without Parliamentary sanction, and see, therefore, what immense benefits Parliament has conferred on the country, and ask how any inferior tribunal could do the like.' Second,' It is all very well to apply the principle of devolu- tion to such personal matters as divorce and naturalization; but how can you apply it to such vastly important local matters as railways, and gas, and water ?' The first answer is really too absurd to be worth wasting pen and ink over. Mr. Clifford might just as well claim that the organ-blower was the efficient cause of Dr. Stainer's performances in St. Paul's Cathedral, as that Parliament was the cause of railway or dock building, because Parliamentary powers were necessary to their being carried out. If going to Parliament had been a means of compelling land- owners to accept reasonable prices for lands taken by a railway company, instead of furnishing an additional lever for additional extortion, there might be something in the plea. The vast expenses and delays and uncertainty of the proceedings might have been justified ; but every one knows that the necessity of an appeal to Parliament has had the very opposite effect, and that a pro- minent cause of the smallness of railway dividends and the host of railway failures has been the frightful expense, direct and indirect, due to Private-Bill legislation. No tribunal could be imagined which could have performed the work with more expense, with less regard for public interests, and less foresight and intelligence, than Parliament. Every page of Mr. Clifford's book bears abundant evidence that once given the principle involved in the compulsory taking of land, which is the sole cause of the necessity of going to Parliament at all, Parlia- ment has been a clog and a hindrance to enterprise, not a help. But, as Mr. Clifford shows, Parliament has, by its treatment of the two latest forms of industrial undertaking which have come under its cognisance, expressed a decided opinion that the present system of Private-Bill legislation is to be avoided. In the case both of tramways and electric lighting it has to a large extent adopted the principle of devolution. In both cases it has preferred to pass general Acts, leaving their application in detail to an outside tribunal, the Board of Trade, merely maintaining the nominal control which is evinced by the necessity of sub- mitting a Bill for the confirmation of the Provisional Orders for the formal sanction of Parliament. As regards undertakings within the limits of the jurisdiction of a single Local Authority —say tramways, or gas, or water—there is no reason at all why Parliament should not devolve its jurisdiction on the Local Authority, Town Council, or County Board, when County Boards are elective and when Town Councils have gathered all local power into their own hands. As regards " international " undertakings, which pass through, or, like the conservancy of rivers, affect more jurisdictions than one, surely the Board of Trade, or the Local Government Board, or a body like the Rail- way Commissioners, could not be more dilatory, more expensive, or more narrow-minded than Parliament itself ; while there would be one great advantage gained, that Parliament itself would approach the discussion of principles in dealing with general laws affecting such matters without bias and without fixed pre- judices. In showing clearly that Parliament has always been a clumsy and dilatory tribunal for dealing with private and par- ticular interests, and that it has from time to time recognised its own shortcomings and devolved the work on special bodies more fitted to perform it, Mr. Clifford has done good service. The learning and industry he has brought to bear have been great ; and if when he goes into details he is inevitably dull, the general reader will find the Introduction, which forms the greater part of this volume, full of interest and novelty.
Previous page
