3. An Act to facilitate the Conveyance of Real Property. 4. An Act to facilitate the granting of certain Leases. 5. Report on the Plans for shortening Legal Instru- ments, presented to the Society for promoting the THE LAW REVIEW. ART. I.—RAILWAY LEGISLATION. BOARD OF TRADE. THERE is not in the system of any civilised country a more singular anomaly than the constant, regular, and indeed everyday interference of the British Parliament with the most important interests and the most sacred rights of individuals. The laws make certain provisions to regulate the acquisition, the transfer, the enjoyment of property; certain other provisions to regulate the possession of personal rights and conditions. According to these rules alone, were the system perfect, or did it make an approach to perfection, all questions respecting men's possessions and their personal condition, all questions of property or of status would be determined. By laws generally applicable to the whole community, and not by particular laws made to regulate individuals, the possession of property and of status would be determined. By laws made prospectively, and before the question to be decided had arisen, would every thing be regulated, not by ex post facto laws constructed to suit a particular emergency, and made after the matter had come into dispute. Far otherwise is our English system of jurisprudence; and we give it this name advisedly, because the passing private acts, acts applicable to particular places, and dealing with the rights of particular individuals, has become as much a regular and understood portion of our system, is supposed to be defined and governed by principles as well known, and is subject to as well defined a course of practice as any of the actions that are brought, or the indictments or informations that are prosecuted, under the ordinary jurisdiction of the civil and criminal tribunals. Thus a will or a settlement has been made by a proprietor who had the undoubted right to dispose of his inheritance as he pleased within the limits prescribed in the general laws existing when he devised, bequeathed, or settled his money and his land. These laws have in no respect been altered since his decease; they still continue to regulate the transfer or enjoyment of all other men's estates, real and personal. But it is found inconvenient to those who take under such will or settlement, that they should be tied up in their enjoyment, or, it is suggested, that a public benefit may be gained by setting those devisees and legatees free from the fetters imposed upon them; and a new law is made operating on this particular case, this one will or this one settlement, upon some speculation, that had the testator or the settlor been able to foresee the present state of circumstances, he would have altered his arrangements. The law makes a new will or new settlement for him. Again, the law is clear that no man's property shall be taken from him without his consent; but certain persons have devised a plan which they report to be of public benefit. It consists in taking many men's property from them whether they will or no, and giving them for it not what they demand and have a right to claim as the price of their consent, but what a jury shall think sufficient. The property is thus forcibly to be seized and used by the projectors of the scheme for the public good; and a law is made to give them this power of seizing and using. All this, too, is practised, and daily practised, in a country which is so exceedingly delicate in protecting all rights of property from even nominal violation, that if A. holds his hand over a close belonging to B. without his consent, he is a trespasser, and liable to be sued when he must needs pay a farthing damages, and the costs of his own defence to the action. Many cases occur daily of persons being seriously damnified by such speculations, without the possibility of receiving any equivalent at all, nay, without even the ceremony being gone through of asking their consent. A work in the nature of a nuisance is erected on A.'s land whether he will or no; he receives compensation such as it is; but B., near whose land or dwelling the nuisance is erected, neither is compensated nor considered, because it does not go on, but only near his premises, though his property is all but destroyed by it. So, too, by our undoubted law, marriage is an indissoluble contract. Once a husband always a husband, says the law. But, to release the party injured by his wife's infidelity, a private law (privilegium, as the Roman civilians called it) is made for each individual case; and the rules by which this kind of legislation is governed, are as accurately ascertained as any of the rules by which rights are declared in Courts of Law, or any of the rules by which many foreign countries decide judicially questions of divorce. So our law holds all children born in lawful wedlock to be legitimate, unless there may have been an impossibility of the parties having cohabited at the period, or immediately before the period of conception. But by private acts, children too young to know what legitimacy is, nay, children unborn, are declared to be bastards upon like grounds. Another instance regards the status of aliens, though this branch of personal legislation has of late been somewhat curtailed.1 Children born out of the realm, and whose fathers and grandfathers were both aliens, are by the undoubted Law of England aliens, and can enjoy no civil rights of any importance in this country. But bills are brought in and passed very frequently to confer on such as can afford to pay for it, the status and privileges of natural born subjects. The first thing which strikes the observer is the highly eminent nature of this legislative power. It snaps all the chains of all the laws the most sacred and the most binding. It is the whole force of the supreme power in the state, the omnipotence of the Legislature, directed to one particular case, brought to bear upon individuals utterly defenceless, wholly incapable of offering any resistance. Then we perceive that it is a power which violates every previous general disposition of the law, introducing wholly new principles, recognising unknown rights, permitting unheard-of wrongs. 1 See Law Review, vol. i. p. 122. Again: it is not only thus permitted and thus exercised, but it is called into existence for the particular occurrence, and for that alone. Furthermore it is retrospective in its nature and operation, so that no mortal who may be affected by it could, beforehand, by any possibility have governed his course according to its exigency, or protected himself from its operation. Some of these special interpositions of the legislative power are rendered necessary by the defective state of the general law. Thus, the absurd cruelty of admitting any foreigners to deal with us and to reside among us, and yet withholding from them the most ordinary as well as the most important rights of natural born subjects, inevitably led to a relaxation of the harsh rule. It is another thing to maintain that the relaxation must needs be applied only in special cases instead of being given by a general arrangement, from which all might alike benefit. So the great hardship, nay, the immoral tendency of the law making marriage indissoluble, and so exposing a man to have spurious issue palmed upon him, and preventing him from getting rid of an abandoned wife, or marrying another, rendered the process of divorce by some special provision necessary, that there might not be a failure both of justice and morality; but it is not equally clear that this provision must needs be made by Act of Parliament when a judicial remedy might be far better applied, which persons of all ranks could benefit by. The public interest is likewise supposed to require that some compulsory power should from time to time be given to facilitate the execution of works highly beneficial to the community, and which a single obstinate party could prevent. This is, however, not quite so clear. If the community is to benefit greatly, it should be prepared to pay highly for the advantage, and we are by no means certain that the safe course would not always be to let the bargain be made voluntarily, and leave the rights of property sacred and untouched. That any one would hold out against very large offers, is impossible; because the other parties would then not go on with their scheme, and so the obstinate or sordid proprietor would obtain no price at all. He knows this, and will in proportion to his avarice be unwilling to sacrifice all the gain he might wish to make. As for his obstinacy from dislike to |