am I of this, that any right-minded person who should see the dissimulation, fraud, and lying, the extortion and plunder, which every barrister sees who has to deal with these cases, would be earnestly desirous to put a chain of iron on such villany; and I believe that if a rigid limit were put on these claims, it would oftentimes relieve a jury from the embarrassing suspicion that they are robbing the railway company when they assess damages upon very dubious evidence.

DISCUSSION.

Mr. EDWARD WILSON (London) said: A third-class passenger had as much right to value his life as the first-class passenger. The proper basis of estimating the injury done to a man would be for the chairman of the company to ask himself what price he would pay to avoid the shattered condition of the poor wretch, who had been reduced from a state of perfect health to a condition of constant pain? Comparing railway with railway, he had no hesitation in saying that some railways, judged by their own returns, were murderers, and deserved to be treated as murderers. It was not a question of damages; it was a question of murder. One set of directors confessed to the shareholders to a loss of 100,000l. in damages, while another had not had an accident on their line for a whole term. A case had been mentioned in which a driver ran past three signals, and occasioned an accident which cost the company for whom he worked thousands of pounds, and that circumstance opened up the question of the hours at which these men worked, and the amount of pay which they received for their overwork. Might it not have been the case that this man had been overworked, and had consoled himself, in the usual way, with a little more beer, and had thus been too fast asleep to notice any signals at all? Looking at the hours at which these men were worked; looking, too, at the insufficient wages which they received, he was at a loss to understand how any person could make an appeal to the public to pity those shareholders who were thrown in heavy damages for accidents that occurred upon their line. How many of those lines referred to had adopted the block system, which was as simple as making a rat-trap? And how many had adopted the system of communication between passengers and guards? While the public were humbugged in this way, he hoped juries would continue to give heavy damages. Let them look at the Plymouth Railway station. Was that a decent station to supply the wants of a large town? It was an insult to the community. Parliament had never done worse work than when it allowed a set of gigantic monopolies to go sprawling over the country. Arguing from what had been done, to what was possible and what was right, he contended that the example of the South Eastern Railway, which had carried on its work without an accident for the last year or two, could be followed if directors chose to follow it, and that equally good management would result in equal immunity from accident.

Mr. H. W. FREELAND (Chichester) agreed with the author of the paper to this extent, that juries sometimes gave very irrational and sometimes vindictive damages. That, no doubt, was an evil to be deplored, to be dealt with, and, if possible, to be cured; but what was the best remedy for that evil? Was it not to educate public opinion up to the principles of justice which they wished to see applied in all those transactions between man and man, or between companies and their unequal opponents-individuals-without depriving a jury of its discre tionary power. This was the best means which they, as practical men, could take to remove, if not entirely, at any rate partially, this serious evil. Discussion would no doubt do a great deal of good; but he appealed to the author of the paper, without passion or animosity, whether that desirable end was likely to be accomplished by means of papers entirely of an ex parte character, for the paper was solely an ex parte one, in favour of the railway companies. The paper alluded to the enormous costs to which railways were put in consequence of accidents; but was not that an argument that cut both ways? Those legal costs

might be very serious indeed to a railway company, but what were they to the
individual who had to bring all his energies, and possibly his not very deep
pocket, into competition with a body of directors, backed by a large body of rich
and responsible shareholders? This was the fair way to put the question. The
costs must surely be more formidable to the individual than to the company, and
this was certainly a strong reason why they should endeavour, if possible, to
avoid going to law at all with these cases, but to refer them to arbitration. Rail-
way companies were not sufficiently pressed by fear of loss of reputation to induce
them to take severe measures to prevent accidents. It was true, they had before
their eyes the danger of very heavy costs, but railway companies had a monopoly
in the country. He quite agreed with Mr. Wilson that Parliament never did a
worse thing than to scatter railways promiscuously over the country, without any
system whatever. Still, the monopoly existed, and the railway companies knew
that people must travel. There might be an accident to-day, but men of business
must travel over that line to-morrow if they had business of importance to trans-
act. This was known to the companies, and therefore the calculation as to their
interest in preventing accidents did not appear to him to have the force that Mr.
Brown attached to it. If the Board of Trade had power to revise travelling
regulations, and to make inquiries into the working arrangements of a line,
irrespective of the occurrence of any accident, many accidents would be prevented.
He advocated giving the Board power to compel compliance with orders which
it might make for the revision of regulations not consistent with the safety of the
public.

Mr. F. P. LABILLIERE (London) said it might be a great hardship for a company
to have to pay 60,000l. as the result of an accident whereby the dividend to the
shareholders might be seriously diminished, if not altogether destroyed; but what
was it when compared with the hardship to the professional man and his family,
to the working man and his family, and to all classes of the community, that
their means of subsistence should be cut off at one stroke by a railway accident?
The hardship on the individual was clearly more heavy than the hardship on a
public company.

Mr. ROOKER (Plymouth) regarded the paper as a strong and able statement of the reasons which supported the reader's view of the question, but at the same time he did not fully agree with the argument. Whilst the statement of the question included the case of all carriers, the illustrations as well as the argument mainly referred to railway carriage. It was important to see whether there was anything connected with railway traffic to lead to a change of the law especially for their immunity. Looking at the question carefully, it must be remarked that the damages and costs constituted an annual average charge corresponding with the costs of maintenance or wages. The directors in fixing the fares, added up the cost of maintenance and of wages per mile, and added to that the average charge on account of accidents. From this gross total they estimated the fares, so that they in reality were the insurers of their passengers, and the passengers paid a premium upon taking their tickets for that insurance. The passenger was, therefore, his own insurer, with this advantage, that the company was continually on the alert to prevent loss from accident. He could not conceive of any reason to justify the removal of the companies from the ordinary category of carriers.

The CHAIRMAN (Mr. Westlake) thought it necessary to recall the attention of the department to the fact that the form of the question and Mr. Brown's paper did not include any case where the railway company could be proved to be itself at fault, either by making improper regulations for the conduct of its traffic, or by overworking its servants, or by exercising defective supervision, or otherwise. The case before the department was that of accidents caused by the negligence of servants, where the company had done its best; and those cases were of sufficiently common occurrence to make the present state of the law a hardship. On the principles which governed the law of principal and agent, the company would not be liable in such a case; nor would it, in fact, be liable in most continental countries. That the company was liable by English law was due to the fact that in this country the liability was regulated not by the law of principal and agent, but by that of master and servant, the stringency of which was a relic of feudalis n. That being the source of the law, it became necessary to consider whether it

八

should be maintained. There would be much importance in Mr. Rooker's suggestion, that it was convenient to the public that the railway companies should insure their passengers even beyond the limits of a reasonable legal liability, the public paying for the convenience in the price of the ticket, if it was really in the power of the companies to put the price of the ticket at a figure which would give them a reasonable profit, after reckoning the compensation payable by way of insurance among their expenses; but, in fact, the companies did not in the long run make a reasonable profit on their capital, taking one company with another; and they could not raise their fares, or Parliament, which considered the interests of the public, would authorize the laying down of competing lines, and the old companies would be reduced to insolvency. He differed from Mr. Wilson in his conclusion that Parliament was prejudiced in favour of shareholders. Parliament interested itself first in favour of landowners, who wanted lines in their districts; then in favour of directors, who would make their profit in many ways; by increased patronage, for instance, irrespective altogether of the profit of the line; and also in favour of engineers, solicitors, and others who get their profit out of the line, irrespective altogether of the interest of the public. The question as to what dividend the shareholders were likely to get, was about the last thing Parliament thought of. If Mr. Wilson's position could be proved, that the present state of the law had induced good management, and consequent immunity from accident, that would be an argument in favour of the present state of the law; but by the doctrine of chances, a railway company might carry on its business for a long period without an accident, and then be the subject of one which would reduce its dividends for years. Theoretically, if the question could be decided on pure theory, the company might be held liable for all damage occurring from circumstances remaining after all blame which could be attached to the servants had been eliminated. Theoretically, the company should not be liable beyond this, and the servant should be liable criminally for his part. But, practically, that would not give sufficient security to the public against accident. Still, as the companies were not in a position to charge a sufficient fare to cover all liability to accident, he would admit a limitation of the liability of the company, as Mr. Brown had suggested.

Mr. H. N. MOZLEY (London) noticed a point which had not previously been touched upon. Mr. Brown had suggested that the law should be amended in the same way as it had been amended in respect of the carriage of horses and cattle. There was a distinct difference between the two cases. One set of goods might be valued at less than another, and a company would be justified in taking less care of a parcel valued at 1., than of a parcel valued at 1000l., but none would justify a company in taking less care of one man's life because he happened to be a bachelor, than of another for whom heavy compensation would be demanded. Instances had been given of accidents which cost the companies immense sums compared with the value of the tickets taken. This, however, might be set beside the Abergele accident, which cost immense loss of life through the carelessness of the company under circumstances which did not allow of much compensation being demanded.

Mr. BROWN, Q.C., stated that the smallness of the competition in this case arose from the fact that the matter was settled on the spot by a special agent. Replying on the whole question, he pointed out that his argument was not directed merely against railway companies, but against the law generally. By the civil law, if a coachman drove over a person, the compensation awarded would be the value of the slave, perhaps about 20., but by the common law there was not a tradesman in the town who might not, in consequence of the act of his servant, be deprived of the savings of a life of thrift, and be utterly ruined. His carman might run over a person in receipt of a good income from a profession, and the tradesman, who perhaps never saw him in his life, would have to compensate his widow. It was not true that the railway companies charged the insurance premium in the fare. Competition forbade this. The companies generally found it to their interest to consult the public convenience, and to make the fares as low as possible. They also found it to their interest to encourage sober and steady drivers; but if in a moment of forgetfulness these drivers caused an accident, were the directors to be charged with murder? Perhaps Mr. Wilson would think it consistent to

charge him with murder if his coachman drove over a man and killed him. Four out of five of the indictments against servants of companies, not for murder, but for manslaughter, failed-a fact which proved that misfortune rather than neglect was the cause of the accident. When the Abergele accident occurred, the company publicly stated that no serious accident had happened on the line for fifteen or sixteen years. It had been stated in evidence before a parliamentary committee that when the directors were about to dismiss a man for negligence, a large number of remonstrances were received by them from passengers who knew the man. As regards the block system, those who would read the evidence on the question would see that it caused more accidents than it prevented; and as for the Board of Trade, they were not such good judges of what would prevent accidents as railway managers. The case was simply this. Railway companies never knew what risks they ran when they started a train. Parliament had recognised the unfairness of this in the case of common carriers; he asked only for the same protection in respect of carriers of passengers.

THE COLONIAL QUESTION.*

The Colonial Question: its present Position, and the Policy of the Future. By EDWARD JENKINS, Barrister-at-Law.

As a we to

S a preliminary to the discussion, we ought to recognise the fact that there has been, during the year just past, a marked change in the tone in which the relations of Great Britain to her colonies have been treated by statesmen and the Press. In certain quarters insulting advice to the colonists "to go and be hanged to them!" has been reduced to the respectful whisper that we are waiting their time for an adieu. Nay, one is not sure that we have not changed all that. Indifferent politicians have warmed up to a semblance of enthusiasm. Ministers whose utterances about the Imperial connection were dubious, to say the least of it, are now found protesting that the aim of their policy has been quite misunderstood. The leader of one great party has, after considerable hesitation, announced the integrity of the empire to be a card in his pack, and no doubt the leaders of the other party will be obliged to play a higher card in the same suit.

It is when a question is in this condition that it is in danger of unscientific treatment. In the bidding of party against party, innumerable issues of passion and prejudice, quite beside the mark, are sure to be raised, and in the end, instead of a principled and solid settlement, comes a disaster, or some impolitic and temporary compromise. I look, therefore, upon the lull that has for awhile come over the colonial question, and upon the present attitude of parties with regard to it, as eminently hazardous to the chances of that careful, mature, statesmanlike treatment which can alone develop a result consistent at once with Imperial prestige and the well-being of the colonies.

Yet, were people to ask, "Where is the colonial question?" one

* See Transactions, 1870, p. 175.

could hardly be surprised. It is a treasure hid in the corner of Downing Street. The greatest empire the world ever saw is administered by a small bureau in that cloister of statesmanship, ostensibly by two Parliamentary secretaries, but practically and chiefly by a small staff of permanent officials. A permanent Under-Secretary of State, and two assistant under-secretaries, and five heads of departments, are the really responsible overseers of our empire. "In the Colonial Office," says Sir Drummond Wolfe, "under the somewhat humble title of clerks, those behind the scenes recognise functionaries exercising many of the powers, and often endowed with many of the qualities of statesmanship;" and adverting to the Parliamentary Secretary of State, he says--"The succession of Secretaries of State is the succession of men, eminent and distinguished doubtless, but from the nature of things ignorant of minute colonial histories. To them the functionaries of the Colonial Office are counsellors, or at all events reporters. On their counsel or reports, based on long experience, and with accumulated information, must depend the policy of the chief. To the clerks in the Colonial Office alone are known the stories of colonial administration, the merits, the objects, the predilections, or jealousies of colonial statesmen, and the constitution of parties in the colonies themselves." Certainly these clerks have no little responsibility in informing the minds of Secretaries of State. When we know that one colonial minister imagined Demerara to be an island, another gave away an important governorship with a high salary in the delusion that it was an unimportant one at a low salary; and another, in conducting the gravest negotiation that ever took place between the Home Government and any of the colonies, was obliged, after months of discussion, to confess himself unaware of one of the most serious conditions of the negotiation, it is clear that the brunt of responsibility is borne by the permanent officials. The nature of the work done by the staff of the Colonial Office might well appal the most iron-nerved administrator. In half a hundred colonies it appoints governors or administrators; it approves or dismisses innumerable officials; it receives and digests reports from all parts of the world; it takes measures for the safety of the maltreated Fijian in the South Seas; superintends the transport, indentureship, and treatment of Indian Coolies in the West Indies or the Mauritius; it professes to supervise emigration from our own land to every other not European; it has its eye at once on the confederation of colonies, on the gamblingtables at Hong-Kong, and on the deceased wife's sister in Australia. It assumes to revise and recommend for veto or assent the legislation of a fifth of the world. Half-a-dozen gentlemen sitting at this central bureau do, in fact, transcend the bold flight of the poet, and in a fashion, govern as well as survey mankind from China to Peru." "What an influence upon the world "-I am quoting from an able leader in the Times, of August 22-" the head of the Colonial Office, for the time being, might exercise, if he could always rise to an adequate conception of his powers and opportunities!"