Committee on Receivers, in their Report, use this expression, "Nor should any consideration connected with fees or stamp duty be suffered to prevail against the higher exigencies or the general interests of the country.'

I find that one of the arguments used in the House of Commons, in support of some of the proposed alterations in the constitution of this tribunal, was that the result of the measure would be a saving to the country. A more misplaced or contemptible argument, in dealing with a question of such magnitude, can hardly be conceived. The people of these countries have proved that they are both able and willing to pay any amount of taxes that may be requisite for carrying out objects of which they approve; and believing, as I do, that the people of this country feel an interest in having the transfer of land facilitated, I am sure they would scorn the paltry design of relieving the country from the trifling expense of supporting this tribunal, at the expense of the suitor, and by means which would mar the very object which that tribunal is intended to effectuate. Courts of justice do not exist for the benefit of suitors alone, but for the benefit of those who are not suitors, and who are not necessitated to become suitors simply because those courts exist, and because the knowledge that there is a prompt remedy prevents the perpetration of wrong and the withholding of rights; and it is just as reasonable to compel the suitor alone to support the court, as it would be to levy the tax for the support of the police only from those who have had occasion to apply for their intervention. I consider it a disgrace to this country, that even in those inferior tribunals where justice is supposed to be cheaply and indifferently administered, stamps have, by the last Civil Bill Act, been imposed upon the proceedings.

Having now stated my reasons for concluding that a cheap Land Tribunal should exist in the three kingdoms, I proceed to consider one or two objections which are frequently urged against it. These are, the dangers of mistake and fraud-of selling one man's estate to pay the debts of another—a danger which, it is said, is greatly increased because you have no contestatio, no person interested in opposing the proceedings, and bringing before the Court everything material for them to know; on the contrary, that it is an exparte proceeding. I have no wish to deny the existence of those dangers, and the possibility of mistake and fraud; but the question is not whether there be that danger, but whether it is sufficient to outweigh the consideration of the general benefit that would result to the community from the measure. It does, however, appear to me that those dangers are exaggerated, and that by proper care they may be almost removed. Every tribunal is fallible, and the apprehension that an erroneous decision may be come to is not any argument against the administration of justice. We have a right to deal with the decision of every court as correct until it is reversed by a higher one. This is not the kind of error which is feared, but it is the danger of overlooking the rights of absent parties, and of intentional fraud and deception being practised on the court. With respect to the first, I think a Land Tribunal would be at least in as good a position to pronounce upon the ownership of land as the Court of Chancery is

in a creditor's suit. The decision of the Court of Chancery that a good title has been shewn only binds the parties to the suit; the change suggested is, that it should be binding upon all the worldthat it should be a judgment in rem. It was a mistake, when such an expensive investigation had been gone through, not to make it final to all intents and purposes. With respect to the danger of overlooking the rights of absent parties, care should be taken that a strict investigation of the title shall take place, and that notice be given to all parties interested, in addition to giving the proceedings themselves the utmost simplicity in their form and the fullest publicity, which will be best done by avoiding technical forms and rendering the proceedings generally intelligible. With respect to the point that there is no contestatio, the same may be generally observed with respect to creditors' suits themselves, the creditor and owner being alike interested in seeing that the debtor has power to create the incumbrance. The purchaser, indeed, is interested in seeing that he has a good title; but I think the title would undergo as careful an investigation from a court accustomed to deal with such matters, and having powers to arrive at the truth, as it now receives from a purchaser's counsel. With respect to the danger of actual fraud, that can never be entirely prevented, but the publicity of the proceedings and the care taken in conducting them form the best securities against this danger. As far as experience goes, we can say, I think, that the experiment of selling with an indefeasible title has been a very successful one, and that none of those evils which were apprehended have as yet arisen. But the question for the legislature to determine is, whether those apprehended evils are worthy of consideration, when we regard the general security of title and the free transfer of land which would follow from the establishment of the tribunal which I have been advocating.

I now proceed to make some suggestions as to the mode in which this jurisdiction should be established.

In the first place, I think that the decision of the title to land is one of the most important questions which can be submitted to any court; and therefore the jurisdiction should not be entrusted to any inferior court, but to one presided over by judges of the highest order, assisted by competent officers, and the suitor should have power of obtaining, by way of appeal, the decision of the ultimate Court of Appeal upon his rights. There is at present a course of practice and procedure established in the Incumbered Estates' Court, which is simple, unembarrassed with needless forms and technicalities, and has given very general satisfaction. It is plain, therefore, that by whatever court this jurisdiction is to be exercised, that system of practice should be followed and adopted. With respect to the proposal of annexing this court to the Court of Chancery, I think that if carried out, it could be safely done by constituting a separate department of that court, to be called the Sales and Title Department. I have no fear that the practice of the Court of Chancery would corrupt the practice of the new tribunal; but, on the other hand, one might reasonably hope and expect that the practice of the Court of Chancery should be reformed and assimilated to the more

approved practice. It is not a little strange that both the friends and the enemies of the Court of Chancery argue against this annexation. It is said, "Will you make the Court of Chancery a great medium for conveyancing, its proper duty being to decide conflicts between adverse parties ?" It appears to me a strange thing that the admirers of that court should pronounce it incapable of undertaking the decision of the most important questions, and propose that they should be committed to other hands, since it is plain that whatever tribunal is entrusted with them will be the first in importance. On the other hand, those who dislike the Court of Chancery say that it is not fit to do this, that its abuses are such that it would ruin anything which was entrusted to it. I ask, if that be so, why should it be allowed to remain so? And what better opportunity could there be for removing those abuses, than by entrusting to it a jurisdiction which would compel it to adopt a new and simple course of practice and procedure? In other words-if not fit, make it fit. I do not concur in the opinion as to its unfitness; I think, by adopting this course, it would be quite fit for the effectual discharge of these functions. The effect of such a transfer, if properly made, would be not to swamp and render useless the new department, but to invigorate and remodel the entire. I find that when it was proposed to entrust the Incumbered Estates' Court with the sale of the estates which were the subject of Chancery suits, the same prediction was made, that it would have the effect of overwhelming the new tribunal. In Lord St. Leonards' evidence before the Receivers' Committee, in answer (600) to the question, "Would it be proper in the Bill now before the House, to allow the Commissioners to deal with estates now under the management of the Court of Chancery ?"-"No, I think it would be a very great mischief to give any such power; it would overwhelm the Commissioners at once, and would prevent them from discharging the duties which it is at present proposed to confer upon them."

It is to be observed that this duty of pronouncing upon title is one that will become every day easier, in proportion to the number of estates which have been made the subject of it, for these afford us so many termini from which to start, and it is only necessary to deal with the subsequent devolution of the title. With respect to the proposal which has been made, to suffer the present court to finish its business, and set the new court in operation at the same time, I look on it as most mischievous and impolitic; the effect of it would be to deprive the country of the services of those who have acquired experience in the working of the system, and to entrust the business to new and unpractised hands.

I look, therefore, upon the proposal of annexing the Incumbered Estates' Court to the Court of Chancery, instead of being destructive of that jurisdiction, as the engrafting it upon the permanent institu

tions of the country.

While I thus advocate the establishment of a Land Tribunal, in order to remove those difficulties which our law of real property has created, I am by no means insensible to the necessity of reforming those laws. I trust, however, that this reform will be well considered and comprehensive, and that this subject will not be marred by piecemeal and experimental legislation. The entire subject ought to be

carefully considered, and it is impossible to separate the reform of our laws relating to land from the question of the Ecclesiastical Courts. These courts have been annually threatened with reform, and I suppose it will at last come; and in any measure for their abolition and the transfer of the probate jurisdiction to some other tribunal, the question of having a real as well as a personal representative ought to be considered. At present, real as well as personal estates are subject to the payment of the debts; the personal representative is the absolute owner of the personal estate, so far as the jus disponendi is concerned; and there seems no reason why there should not be a real representative having the same power to dispose of the real estate. Thus, in case of death, the law would authoritatively determine the devolution of real estate for the purposes of sale. If other alterations were made, assimilating the law of real to that of personal property, and shortening the period of limitations, the duties of a Land Tribunal would be greatly facilitated, and the transfer of land would soon be placed upon a sure and satisfactory basis.*

II.—The Private and Local Business of Parliament.—By Joseph John Murphy, Esq.

[Read May 19th, 1856.]

THE private and local business of Parliament arises from the fact, that work has to be done which the law of the land does not afford the requisite powers for doing; so that it is necessary to obtain special powers from Parliament. No individual or company, for instance, has the power of compulsory purchase, except in so far as it is conferred by Parliament for a special purpose, and to a defined extent; so it is necessary to obtain that power from Parliament in every separate case where a railway is to be made, as it is manifestly impossible to make a railway of any length, without authority to purchase land at a compulsory valuation.

Thus a vast quantity of work is thrown on Parliament, of a kind that was not contemplated by the framers of our constitution. The constitutional functions of Parliament are, Ist, to make laws; 2nd, to sanction the expenditure of the public money; and, 3rd, to control the executive; but now the business of public legislation is seriously impeded by this huge and increasing mass of miscellaneous local business.

It would be a partial compensation for the hindrance of public business and the postponement of measures of public legislation, if But this is not the the private and local business were well done.

It is right to observe that the subject discussed in this paper is at present under the consideration of a Select Committee of the House of Commons, to whom the Bills for continuing the Incumbered Estates' Court, or annexing it to the Court of Chancery, have been referred. The Committee has not as yet made any report, but a general impression prevails that the opinion of the majority of its members is adverse to the continuation of a Parliamentary Title. It remains to be seen whether such a decision, if made, will meet the approval of the Legislature, or whether the public, who not unreasonably expect that the principle should be perpetuated in Ireland, and extended to the rest of the kingdom, will approve of the retrograde movement which such a decision would suggest.

case. I will not attempt any detailed exposure of the vices of the system; the rather as this has been admirably done by a writer in the Edinburgh Review for January, 1855, in an article entitled "Private Bill Legislation," which I will not spoil by attempting to condense. I will here speak only of the enormous expense it entails on the promoters of bills, especially when they meet with opposition. In the latter case the expense is so great, that it is by no means uncommon to oppose a bill on perfectly frivolous and untenable grounds, in hope that the promoters may find it cheaper to buy off opposition than to contest it. And who can tell how many useful enterprises are rendered impracticable, because they are too small to pay the expense of obtaining the necessary powers from Parliament? The Limited Liability Act does not meet this objection, for it affords no facilities for obtaining the power of compulsory purchase, which is equally necessary, in many cases, with that of the limited liability of shareholders.

It is, besides, utterly unreasonable to expect members of Parliament to do the kind of work which is thrown on them by our system of private legislation. The expression private legislation is, in fact, a misnomer, a contradiction in terms. It is not legislation at all, but administration; and administrative work is not suited to Parliament. Members of Parliament are unpaid; may they ever remain so! We have few greater privileges than that of being able to get our public business done by men of social standing, who do not enter public life for a livelihood. But the services of unpaid men ought, as a general rule, to be demanded in the deliberative department only. The inferior parts of the work, and all that can be reduced to routine, ought to be left to their paid subordinates. The unpaid men should give orders, and the paid men execute them.

This observation indicates the manner in which it is proposed to disburden Parliament of that portion of its functions which is really administrative. Let Parliament, instead of conferring special powers by a private act in every separate case where they are required, pass a general act, or series of acts, to provide for every such case that may arise in future; and at the same time constitute a Department of State, with authority to administer those acts. Thus, one general act would do the work of many private or local ones, and, as I hope later to show, would do it better.

It cannot, however, be practicable in a constitutional state to transfer the entire power of private legislation to the executive. Cases will occur that must be reserved for the consideration of Parliament alone: especially bills of indemnity, and bills to modify the terms of trusteeship. These, by the terms of the case, transcend the authority of the courts of justice; and to confer authority in such matters on the executive would constitute a despotism. This function of Parliament, however, is not properly either legislative or administrative, but judicial. There are cases where the power that makes the laws sanctions a temporary departure from the law, in order to serve the ends of justice. And some local jurisdictions must perhaps always exist, such as harbour and river trusts, which are somewhat exceptional in their nature, and cannot be brought under any general act. All I contend for is, that where it is possi