expanded and enlarged so as to meet the wants and requirements of trade in the varying circumstances of commerce, the effect of which is that it approves and adopts from time to time those usages of merchants which are found necessary for the convenience of trade."1

1 Per Bigham, J., in Edelstein v. Schuler, [1902] 2 K. B. at p. 154; and see Williams v. Ayres (1877), 3 App. Cas. at p. 143; and Bechuanaland Exploration Co. v. London Trading Bank, [1898] 2 Q. B. 658. These cases. to some extent at all events, overrule the decision in Črouch v. Crédit Foncier (1873), L. R. 8 Q. B.

374.

CHAPTER XI,

of

SUBORDINATE LEGISLATION.

EVERY law is made by the State, either directly or indirectly. It legislates indirectly in many different ways and by means many different officers or bodies. A judge may be said to legislate indirectly when he recognises a mercantile custom and gives it judicial sanction. Again, Parliament frequently confers on inferior bodies the power to make orders, rules and regulations which have the force of law. It is practically compelled to do this by lack of time, caused mainly by its cumbrous and antiquated procedure.

During the reign of Queen Victoria our domestic legislation increased enormously, and Parliament could not grapple with it without assistance. The Private Bill Committees could not possibly deal with all the applications made to them by municipal corporations, harbour boards, railway companies, improvement commissioners, and every other kind of local authority; and yet such matters could only be disposed of by Act of Parliament. It was necessary, therefore, for the Legislature to delegate its authority to some of the great Government departments, at the same time keeping the final decision on each matter in its own hands. And so the "Provisional Order" was invented. Power is given to some department or other body in which Parliament has confidence -generally on the application of some local authority-to hold, if necessary, a local investigation into the circumstances, and then, if it thinks proper, to prepare a detailed scheme, which is embodied in an order. This order subsequently appears, with several others, in the schedule to a " Provisional Order Confirmation Bill," introduced by the Government department which has charge of such matters. It is, of course, still open to any body or person concerned or aggrieved (subject to the parliamentary rules as to locus standi) to

oppose the bill in the ordinary way. But this seldom occurs; Provisional Orders are confirmed by Parliament almost as a matter of course. A Provisional Order has no validity till it is confirmed; but when confirmed, it is part of an Act of Parliament and can therefore alter, amend or repeal former local Acts.1

Apart from Provisional Orders, power has been conferred by the Legislature on several of the great departments of State to issue general rules and orders and on municipal and other corporations to issue by-laws. Thus the Judicature Act, 1881,2 conferred upon a committee of our judges the power to make rules, which regulate the procedure in the High Court of Justice and in the Court of Appeal and which have all the force and effect of statutes.3 Certain bodies have also power to make rules or by-laws under the common law. We will briefly discuss these powers under two heads :(i.) Orders, &c., issued by departments of State. (ii.) By-laws.

(i.) ORDERS, &C., ISSUED BY DEPARTMENTS OF STATE. First and foremost among the bodies which have power to issue orders stands the Privy Council. This influential body has inherited some of the powers of the ancient Great Council (Aula vel Curia Regis), from which it derives its origin. Hence it has power, under the prerogative of the Crown and without any authority from Parliament, to make orders with regard to the naval and military forces, the civil service and all matters of state ceremony. But in addition power has often been conferred upon it by Parliament to issue orders on special matters affecting health, trade, education, &c.* 1 Public Health Act, 1875 (38 & 39 Vict. c. 55), s. 303; Local Government Act, 1888 (51 & 52 Vict. c. 41), s. 59 (6).

2 44 & 45 Vict. c. 68, s. 19; and see 57 & 58 Vict. c. 16, s. 4.

4

3 See the Judicature Act, 1875 (38 & 39 Vict. c. 77), s. 17, as amended by the Appellate Jurisdiction Act, 1876 (39 & 40 Vict. c. 59), s. 17. There are more than 1,100 of these "Rules of the Supreme Court." They are divided into 78 orders, which are set out in a white book called "The Annual Practice."

4 Thus by s. 231 of the Customs Consolidation Act, 1876 (39 & 40 Vict. c. 36), power was given to the Privy Council to make orders as to the quarantine of persons on board ships, which have touched at places where there is reason to believe that some highly infectious disease or fever prevails. This power was transferred by the Public Health Act, 1896 (59 & 60 Vict. c. 19), s. 2, to the Local Government Board, which has also power under the Public Health (Regulations as to Food) Act, 1907 (7 Edw. VII. c. 32), to make regulations to prevent the importation from abroad of diseased meat.

Most of our Government departments such as the Board of Trade and the Board of Education were originally committees of the Privy Council.1

The Local Government Board has large legislative powers. Its orders, rules and regulations have in many cases the force and effect of a statute. This legislative power of the Board in poor-law matters is subject to a threefold control. In the first place, a copy of every general rule, order or regulation issued by it must be laid before both Houses of Parliament as soon as practicable after its publication. Secondly, the King may, by the advice of his Privy Council, disallow a general rule or any part of it, which will then cease to be of any further force or validity. Lastly, there is a power, little known and seldom, if ever, exercised, to bring any rule, order or regulation of the Board before a Court of law and have it declared illegal and ultra vires. But no rule, order or regulation of the Board comes into operation until fourteen days after it has been published, though it may be acted on within the fourteen days. And at any time within a year after it has been published, any person aggrieved may apply to the High Court of Justice to have the rule, order or regulation quashed. Till it is quashed, however, the rule remains in force, in spite of the application.

The Board of Trade possesses large administrative powers. It deals with a vast number of most important matters, such as bankruptcy, companies,3 copyright, trade marks, harbours, railways and canals. It regulates light railways and tramways, and grants licences to local authorities under the Electric Lighting Acts, 1882 and 1888.* The Board of Agriculture and Fisheries also has power to issue orders and regulations. It has inherited all the powers of the Land Commissioners under the Settled Land Act, 1882,

5

1 See Odgers on Local Government, 2nd ed., Chap. XII.

2 See 25 & 26 Vict. c. 69, Interpretation clause.

3 See, for instance, the Companies (Winding-up) Rules, dated March 29, 1909, made pursuant to the Companies (Consolidation) Act, 1908 (8 Edw. VII. c. 69), and signed by the Lord Chancellor and the President of the Board of Trade. 445 & 46 Vict. c. 56, as amended by 51 & 52 Vict. c. 12.

5 The Board of Agriculture was created in 1889, by the 52 & 53 Vict. c. 30. It became the Board of Agriculture and Fisheries in 1903 by the 3 Edw. VII. c. 31. 645 & 46 Vict. c. 38, s. 48.

and some of the powers of the Privy Council.1 It also prescribes and regulates the muzzling of dogs and the seizure, detention, disposal and, if need be, slaughter of stray dogs. The Board of Education has power to issue from time to time a Code, giving minute directions as to the management of an elementary educational school.

(ii.) BY-LAWS.

The term "by-law" includes any order, rule or regulation made by any local authority or statutory corporation subordinate to Parliament. The subordinate authority must, of course, have power expressly or impliedly conferred on it to legislate on the matters to which the by-law relates; and the by-law which it makes must be reasonable in itself, it must not be retrospective nor contrary to the general principles of our law. If these conditions be satisfied, the by-law is binding on all the persons for whom, or throughout the place or district for which, that subordinate authority has power to legislate.

A by-law regularly made by a corporate body under its charter "has the same effect within its limits, and with respect to the persons upon whom it lawfully operates, as an Act of Parliament has upon the subjects at large.” 4 "A by-law, though made by, and applicable to, a particular body, is still a law, and differs in its nature from a provision made on or limited to particular occasions: it is a rule made prospectively, and to be applied whenever the circumstances arise for which it is intended to provide."5 A by-law is not an agreement, but a law binding on all persons to whom it applies, whether they agree to be bound by it or not. All regulations made by a corporate body, and intended to bind not only themselves and their officers and servants but members of the public who come within the sphere of their operations, may be properly called by-laws."

"6

A by-law may be good as against a particular class of persons only. Thus a by-law may bind the members of the corporation making it, and yet not bind strangers. The homage of a manor may make by-laws for

1 Eg., under the Destructive Insects Act, 1877 (40 & 41 Vict. c. 68, as extended by 7 Edw. VII. c. 4), and the Contagious Diseases (Animals) Acts, 1878 to 1893, as consolidated in the Diseases of Animals Acts, 1894 to 1910 (57 & 58 Vict. c. 57; 10 Edw. VII. & 1 Geo. V. c. 20).

2 Created in 1899 by the Board of Education Act (62 & 63 Vict. c. 33). 3 This word originally meant the law of a borough-any rule which was in force in, and was issued for the regulation of, a borough. By" or "burh" was the name given to any fortified town or vill.

Per Lord Abinger, C. B., in Hopkins v. Mayor, &c., of Swansea (1839), 4 M. & W., at p. 640.

5 Per cur. in Gosling v. Veley (1817), 7 Q. B., at p. 451.

6 Per Lindley, L. J., in London Association of Shipowners v. London, &c., Docks Committee, [1892] 3 Ch., at p. 252.