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.

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

the scheme, this ought to be overcome by high, even very high, payment; for this is his unquestionable right to indulge, unless all property is a mere name.

But without carrying our doctrine so far, at least we may safely lay it down as a position resulting from what has been said respecting this extraordinary and eminent function of the legislature, that it should be guarded by every check which can be devised against abuse; that it should only be exercised after the most anxious inquiry into all circumstances in the scheme, all rights and interests of parties whom it may affect; that the most minute and deliberate attention should be given to the whole arrangements proposed; that the continual leaning should be against the grant of the extraordinary powers sought; above all, that the utmost care should be taken to construct the tribunal which is to decide on these high matters in such a manner that the utmost impartiality and a consummate capacity for conducting the inquiry should reside in all its members. We believe it is now universally confessed that the tribunal before which these most important matters are brought, is little entitled to claim any such character; that the manner in which these inquiries are conducted, is any thing rather than that of the kind which has been described.

It is only necessary to consider for a moment the constitution of the Lower House of Parliament to be satisfied that nothing can be less fitted for exercising judicial functions, and those of which we are speaking are purely judicial. Any act of a private or personal nature, any statute which makes an exception to the general law of the land is necessarily of a judicial, and not at all of a legislative, description. The decision of contested claims to preference, that is, first having the general law repealed in the favour of one or of the other, -the determination of conflicting petitions to obtain an advantage or escape a burthen, much more the application for a personal benefit in favour of one individual, or a personal burthen to be imposed on another; these are not in the least degree legislative, but only judicial matters, and to be dealt with by judicial rules. Now, no tribunal can be worse constituted for judicial functions than the House of Commons. The Lords form a Court of Judicature, and may be supposed therefore to be better fitted for the kind

of judicial legislation in question. But though it be so in theory, yet in practice only three or four of their number sit upon appeal causes, thus confessing that the body at large is not fitted to administer justice. How much less are the Commons fitted to discharge this duty! There is the total want of practised knowledge in such matters; there is the equal want of all individual responsibility; there is the too great number of the members; there is the inevitable exposure of each to the arts and solicitations of parties whom they may hear in private and behind each other's backs. All these things make this the very worst court in the world for trying causes of any kind. It is true that a contrivance is had recourse to for lessening the frightful evils of the whole House acting judicially. Committees are chosen to exercise the judicial power. But though this may mitigate, it never can remove the evil. There is still the want of experience, the want of responsibility, and the accessibility to influence.

We have only to view the working of the Grenville Act, that we may be convinced how unfit the Commons are for judging. Before the year 1770, all causes of contested elections were heard by the whole House sitting and voting together. The members avowedly acted corruptly in all questions of this nature; for can we call it any thing else than corruption, when each right to a seat was determined by the parties who divided the House as they did on any other question, each member voting with his faction, so that the majority of one against Sir Robert Walpole, in the case of the Chippenham Election, overturned his ministry which had lasted twenty years. The shame of so infamous a scandal became at length too great to be endured, and the Act passed which referred all election cases to a select committee chosen by ballot, that is, by lot, in each case, the parties naming two members to look after their interests, but sworn, like all the others, to try according to their consciences, which each construed to mean, his several conscience. The power of administering oaths was also given to these committees. A considerable improvement was by this change introduced; but party still interfered; and as when the lists were at first of a larger number, each party was allowed to strike off so many, it was always seen, that the object of both was not only to keep out

each other's political adversaries, but also to exclude all the ablest members, there could be no doubt that the less gifted men were expected to follow their party colours, or, perhaps, to take private hints from the parties between whom they had sworn to judge impartially.

After many further alterations, all arising from the general impression that justice was ill-administered before even this better tribunal, we come to have the existing system', which leaves the trial of each case to five members, and these are thus chosen. From one of five panels into which the house is divided, four are taken by lot; two being ministerial, and two opposition, members. Then a chairman is chosen from a third panel, which is formed by the general committee, named by the Speaker, but containing equal numbers of both sides. The whole depends then upon the vote of the chairman; that is, upon the lot which selects him from the third list. If the system works well, and excludes all party influence, the points will, in succession, be determined, and the final decision will be given probably by unanimous votes-certainly by great majorities, and the colours of the chairman's political party will be no index to the result in any case. There is a slight alteration in the system by the Act of last session; but so far as the past is concerned, how stands the fact? The whole result, the ultimate division in each case, was almost uniformly found to depend on the chairman. The committee, until the present year, were seven in number: the three tories voted together one way; the three whigs voted together another way. The vote of the chairman, therefore, decided; if he was tory, there were four to three for the tory party; if he was whig, there were four to three for the whig party. This has been repeatedly shewn in Parliament by analyzing the votes and the returns as given to the public by the Commons' House itself.

It has long been the opinion of all rational men that the jurisdiction in election cases ought to be taken from the Commons, or rather abandoned by them, on account of their total unfitness for exercising it. But it is said that the

17 & 8 Vict. c. 103.