« EelmineJätka »
Rayre-, Palmer, and Co., who were the owners in law and in fact Therefore the ageignment was valid, and plaintiff bad no claim. The defendant said that Rayner, Palmer, and Co.'s debts amounted to £2000, after two years' trading. The assets were about 59. or 69. in the pound. Harden was not a partner to bis koowledge in Rayner, Palmer, and Co. Judge Lumley Smith found for the plaintiff for £35 and coste.
The announcement that the London County Council has decided to affix a tablet at 55, Lincoln'o-ind-fielde, to mark the residence of Sir William Blackstone, will be read with equal interest on both sides of the Atlantic, for, if we mistake not, the Commentaries oa the Laws of Eogland are held with reverence in America equal to, if not greater than, the respect shown to them in this coustry. What a remarkable influence the little posthumous baby born in London in 1723, deprived of bis mother twelve weeks after his birth, has had on the legal systems of the two great English-speaking peoples! In his early' manhood Blackstone forsook Calliope for Themis, as we see ia bis Lawyer's Farewell to his Muse; and his work was ended, his journey done, at the age of fifty-seved. One of bis pupils at Oxford, as great if not greater than the master-Jeremy Bentham-declares that he was a “ formal, precise, and affected lecturer; jost what you would expect from the character of his writings—cold, reserved, and wary, exhibiting a frigid pride.” Austin, who is equally severo on Blackstone for slavishly following Hale, eays that he “blindly adopts the mistakes of his rude and compendious model." Cobbett more suo bestows an amount of vigorous abuse on the author of the Commentaries, of whom he says in his introduction to his History of the Reformation : "For cool, placid, unruffled impudence there have been Do people in the world to equal tbe • Reformation' gentry; and Blackstone seems to have inherited the quality in a direct line from some altar-robber in the reigo of that sweet young Protestant saint, Edward the Sixth. If Blackstone had not actually felt the spoils oi the Catholic Church sticking to his ribe, he would have rocollected that all these things which he was eulogising-Yagoa Charta, trial by jury, the offices of sheriff, justice of the peace, constable, and the rest of it-arose in days of • monkish ignorance and superstition.” “Junius,” Blackstone's contemporary, on the other hand, opens the vials of bis elegant scorp; “Like a polish'd razor keen Wounds with a touch that's scarcely felt or seed. Writing to the editor of the Public Advertiser under date the 22nd June 1769, the nominis umbra gays : “ Doctor Blackstone is Solicitor to the Queen. The doctor recollected tbat he had a place to preserve, though he forgets he has A reputation to lose. We have now the good fortune to understand the doctor's principles as well as his writinge. For the defence of troth, of law, and reason, the doctor's book may be safely consulted ; but whoever wishes to cheat a neighbour of his estate, or to rob a country of its right, need make no scruple of consulting the doctor himgeli."
HIGH COURT OF JUSTICE.-CHANCERY DIVISION, Company-Debentures--Future Calls—Charges on “ Property" and
• Assets ”-Winding-up-Rights as between respective Debenture. holders.-A. H. and Co. Limited were incorporated in 1873. By the memorandum of association the company was given power “to raise money upon mortgage, or charge of any property of the company, or upon debentures or any other security." By the articles the directors were given power to do all such acts and things on behalf of the company as are not required by statute to be done in general meeting ; and particularly they might borrow moneys on behalf of the company and mortgage or charge the whole or any part of the property of the company (including future calls to be mado on the company's shares) by bonds or debentures. The company in 1898 authorised the directors to borrow a eum not exceeding £60,000, and a prospectus was then issued offering £50,000 first mortgage debentures at par. The prospectus stated that these debentures constitute a foating first charge upon the undertaking and all the property of the company; the "assets were then set out, including uncalled capital on sbares. The debentures them. selves, however, were only expressed to be a charge upon the company's " undertaking and all its property, both present and future.' A clauso in the conditions on the back of these debenturos stated that the company was not to be at liberty to create any mortgage or charge in priority to the said debentures. In 1907 the company authorised a further borrowing of £30,000 to be secured as the directors should deem ad visable, and 300 ** second mortgage debentures" of £100 eaoh were then issued. Under these second debeo. tures the company charged its “undertaking and all its property and assets whatsoever and wheresoover, present and future”; but this issue was declared to be a second charge only, ranking next after the first debentures. In July 1910 a receiver was appointed on bebalf of the first debenturo-holders, and on the 28th Sept. 1910 the company passed a resolution for voluntary windiog-up; liquidators were then appointed, and calls were made by them upon shares. The liquidators then took out a summons to determine whether the firet debenture-holders were entitled to a charge upon capital called up after the winding-up, or whether this was only secured to the second debenture-bolders. Held, that the word “property" does not for this purposo include un called capital, but that the word “ assets ” does (Re PylWorks, 62 L. T. Rep. 887 ; 44 Ch. Div. 534; and Page v. International Trust, 68 L. T. Rep. 435); and, therefore, that the second debenture-holders were alono entitled to the charge in question.
[Re Andrew Handy side and Co. Limited. Ch. Div.: Neville. J. May 30.--Counsel : Peterson, KC. and Manning ; Jenkins, K.C. and Tennyson ; Felix Cassel, K.C. and Cozens-Hardy Solicitors : Field, Roscoe, and Co., for Dowson and Wright, Nottingham ; Stanley, Woodhouse, and Hedderwick.]
NOTES OF RECENT DECISIONS NOT
OUR LITERARY COLUMN.
HOUSE OF LORDS. Employer and Workman - Compensation Amount Concurrent
Contracts of Service-Member of Royal Naval Reserve-Annual Retainer-Workmen's Compensation Act 1906 (6 Edw. 7, c. 58), 8. 9; sched. 1, par. 2 (6). A stoker employed on board a merchant steamship was also a stoker in tbe Royal Naval Reserve, and was injured by an accident arising out of and in the course of his employment on the merchant_ship which disabled him, so that he could not continue in the Reserve. Held, that sect. 9 of the Workmen's Compensation Act 1906 did not prevent his service under the Crown from being a concurrent contract of service with that under the owners of the merchant ship within sobed. I, par. 2 (b), of the Act, and that the amount of the appual retaining fee paid to him by the Crown as a member of the Royal Naval Reserve should be taken into account in assessing the amount of compensation payable to bim by the owners of the merchant ship. Judgment of the Court of Appeal (103 L. T. Rep 746; (1911) 1 K, B. 376) affirmed.
(Owners of Sleamship Raphael v. Brandy. H. of L. June 1.Counsel : J. R. Atkins, K.C. and R. degar ; E. Stewart Brown and H. H. Harding. Solicitors: Bollerell and Roche, for Weightman, Pedder, and Co, Liverpool; Windybank, Samuell, and Lawrence, for
Fox and Bradley, Liverpool.) Employer and Workman-Compensation-Accident arising out of
Employment-Seaman drowned while relurning to Ship.-A sailor, who had been on shore with leave, came on to the wharf after dark to return to his ship. The access from the wharf to the ship was by å gangway wbich was sufficiently lighted and provided with guide ropee. Before he reached the shore end of the gangway he fell into the water and was drowned. No one saw exactly how the accident happened. Held, that there was no evidence that the accident arose "out of " bis employment within the meaning of the Work. men's Compensation Act 1906, and that the shipowners were not liable to pay compensation. Judgment of the Court of Appeal (103 L. T. Rep. 778; (1911) I K. B. 523) a tfirmed. Moore v. Manchester Liners Limited (103 L. T. Rep. 226 ; (1910) A. C. 498)| distinguished.
[Kitchenham v. Owners of the Steam hip Johannesburg. 4. of L. June 2.-Counsel: E. M. Pollock, K C. and S. J. Duncan; Alkin, K.C. and A. Neilson. Solicitors: John J. Hands and Lindo ; Botterell and Roche.]
THE ANGLO-AMERICAN ARBITRATION TREATY.
(By THEODORE ROOSEVELT in the Outlook ) COVEXANTS for arbitration, that is, arbitration treaties, between nations must, until some form of effective international police force is devised, depend for their value mainly upon the degree of civilisa. tion acbieved by the contracting powers. Arbitration treaties with, or between, communities in a low state of development, at the best represent little real advance, and at the worst may represent positive harm; because they may tend to distract the minds of good people from methods by which genuine service could be rendered tbe peoplee in question. The action of the United States in taking charge of the custom-houses in San Domingo, allotting the Government part of the proceeds and reserving the rest for the benefit of the creditors, has conferred, from the stand point of peace no less than from the standpoint of justice, a thousand times more benefit upon San Domingo than has been conferred upon the Central Amerioan republios hy the building of a peace palace and by uominally seouring among themselves arbitration agreements. The actual result in San Domingo was to bring a greatly increased measure of peace, justioc, and prosperity ; while the actual result in Central America has been either absolutely nil or possibly even the working of some small detriment by distracting men's minds from the fundamental fact that what is there needed is order and justice within the boundarie- of each of the several States-imposed partly from without, if it proves impossible to get it wholly from within.
Between Great Britain and the United Stato: it is now safe to have a universal arbitration treaty, because the experience of ninety. six years has shown that the two nations have achieved that point of civilisation where each can be trusted not to do to the other any one of the offences which ought to preclude any self-respecting nation from appealing to arbitration. But no language should be used in the treaty which would tend to obscure this cardinal fact, this cardinal reason why the treaty is possible and desirable. Among privato individuals the man who, if his wife is a gsaulted and has her face slapped, will go to law about it, instead of fortbwith punishing the offender, would be regarded with derision. The reason why, in moderately oivilised commucities, it is not necessary to say that a
reserves to himself the right to a gsault anyone who in bis presence slaps his wife's face is the simple fact that in no such community is it now possible to imagine such action occurring. But to
A Digest of the Civil Law of Ceylon. By P. ARUNACHALAM,
M.A., Barrister-at-law. Vol. l. Stevens and Haynes. The author of this excellent work fears ill-considered attempts at reform of the Ceylon Civil Law, which he describes as huge, indeterminate mass of legal lore buried in tomes of mediæval Latin and Dutch." As he rightly points out, there should be a clear idea of a system before starting to amend it, and the present book is a praisewortby attempt to reduce the Ceylon Civil Law to a systematic form such as might serve as the basis of a code embodying useful reforms. This plan is to be carried out in fire books, of which this is the first, and deals with Persons, Things, Juristic Acts, Time, Limitation of Actions, and Exercise of Rights, Self-defence, and Self-help. The other four books will treat of the Law of Obligations, Things, the Family, and Succession. The general plan as shown in this volume is excellent, and we anticipate that the complete work will be one of great value to all concerned with this subject.
require any public official, or private citizen who takes an oath to obey the laws of the land, to include in that oath the specific statement that if his wife's face were slapped he would not do anything other than bring suit, would be rather worse than an absurdity. In just the same way, the United States ought never specifically to bind itself to abitrate questions respecting its honour, independence, and integrity. Either it should be tacitly understood that the contracting powers no more agree to surrender their rights on such vital matters than a man in civil life agrees to surrender the right of self.defence; or elge it should be explicitly stated that, because of the fact that it is now impossible for either party to take any action infringiog the honour, independence, and intagrity of the other, we are willing to arbitrate all questions.
Hypocrisy never pays in the long run. Even if the indifference of the majority of the nation abould permit a specific agreement to be made to arbitrate such vital questions, that same majority would promptly (and quite properly) repudiate the agreement the moment that it beoame necessary to enforce it. No self-respecting nation, no nation worth calling a nation, would ever in actual practice consent to surrender its rights in such matters. Take this very case of the agreement between Great Britain and ourselves. Thank Heaven ! it is now impossible—and I use the word literally—that there shall ever be war between the English-speaking peoples. The events of the last ninety-six years have shown this to be the fact, and year by year the feeling between them has grown better and the determination to settle every dispute by amicable and honourable agreement based on mutual respect and consideration has become more fixed. But this is because of the attitude adopted by both during the ninety-six years. Go back a little over a century and conditions are wholly different. If Great Britain now started to exercise the right of search ao she exercised it a hundred years ago. with its incidents of killing peaceful fishermen witbin the limits of New York Harbour, of kid. napping sailors by violence on tho high seas, of ruining merchants through no fault of their own, of firing on American men-of-war and killing men aboard them-why! if any such incident occurred at present, this country would fight at the drop of the hat, and any man who proposed to arbitrate such a matter would be tossed contemptuously out of the popular path. The reason we can now a fford to bave a general arbitration treaty is that such incidents are no longer possible. As long as they were possible, an arbitration treaty would have been impossible, because they were matters which no self-respecting nation would arbitrate. This is a fact wbich can be tacitly ignored only as long as it is tacitly acoepted. Any language whioh specifically attempted to deny its existence would be thoroughly unfortunate, because it would mean either that this nation was taking an ignoble position because it bad an ignoble spirit, or else that was hypocritical, pretending to enter into an obligation which in actual practice, if the strain oame, it would not for one moment carry out.
As regards Great Britain, the matter is academic, simply because there is no possibility in actual fact of the occasion arising which would make it necessary to try to carry out the unwise obligation. But we should be very cautious of entering into a treaty with any nation, bowever closely kpit to us, the form of which it would be impossible to follow in making treaties with other great civilised and friendly natione. For instance, at this very time Mexico has been engaged for some months in civil war, one of the incidente of wbich bas been the repeated military invasion of our territory. Again and again armed bodies of Mexican troops have fired across the boundary and killed or wounded American citizens. In this case we have chosen to submit to such invasione, as is our right and privilege if we so desire. But it would be absolutely i stolerable to bind ourselves to arbitrate the questions raised by suob invasions. If, for instance, instead of its being Mexican troops firing into our inland towns and killing our citizens, it bappened to be an English or a German or a Japanese fleet wbich, not once but again and again, fired into our coast towns, killing and woundiog citizens, this nation would immediately demand, dot arbitration, but either atoboment or war. In the same way, if a dispute arose between us and another nation as to whether we should receive enormous m88808 of immigrants whom we did not desire from that nation, no one who knows adything of the temper of the American people would dream that they would for one moment consent to arbitrate the matter. In such a case we sbould say that our bonour, our independence, our integrity, and our very national existence were involved, and that we could not submit such a question to arbitration.
Let the treaty either keep silent entirely about such questione, it being tacitly but with entire clearnegs understood that of course the two contracting parties do not surrender tbobe rights which lie at the foundation of all that makes national life worth having, or else let it make use of a preamble which will show that tbey agree to arbitrate all things only becausa certain things have now become unthinkable and impossible. But the treaty should make no explicit declaration of a kind which would brand us with cowardice if we did live up to it, and with bypocrisy and bad faith if we did not live up to it. Also, it is well to remember that as there is not the slighteet conceivable danger of war between Great Britain and the United States, the arbitration treaty would have no effect whatever upon the armamente in either country.
The Collecteil Papers of Frederic TVilliam Maitland. Edited
by D. A. L. FISHER. Three vols. Cambridge University
Press. These volumes collect the scattered writings of the late Professor Maitland in chronological order. Thus in the first we have the fine historical sketch of liberty and equality, the law of real property, the early history of malice aforethought, the seisin of chattels, suitors at the County Court, and the inaugural lecture on his appointment to the Downing Chair in 1888. In the second volume are the fugitive essays prior to his History of English Law (1895). These include Materials for English Legal History, Introduction of English Law into Ireland, History of the Register of Original Writs, A Conveyancer in the Thirteenth Century, Survival of Archaic Communities, and Outlines of English Legal History 560-1600. The third volume covers work of the last eleven years, most of which has already been published in various reviews and the Encyclopædia of the Laws of England. Among the articles are: The Tribal System of Wales, History of Jewish and Christian Marriage, Origin of the Borough, Canon Law, Records of Lincoln's-inn, Law at the Universities, Laws of the AugloSaxons, Making of the German Civil Code, and many others. The volumes are replete with interest for students of law and historical science.
We have received Part 2, 1911, of vol. 4 of Butterworths' Workmen's Compensation Cases, edited by Mr. Douglas Knocker, containing all the cases entered in the lists of the House of Lords and the Court of Appeal for Hilary Term.
Mr. W. H. Behrens has compiled An Epitome of the Provisions of the Companies (Consolidation) Act 1908, relating to the incorporation and carrying on of a company, with the object of collating the various clauses in chronological order, and so simplifying the task of Bolicitors and secretaries and those baving to do with the promotion of limited liability companies. The pamphlet is published by Sir Joseph Ca uston and Sons Limited.
We are not surprised that a second edition of Mr, George Worley's neat little bandbook, The Temple Church : a Short History and Descrip. tion (George Bell and Sons Limited), has been called for. The church of the Knights Templars in London is a much-visited monument, and the description of the fabric and its contents, and the short history of the Order, is just what those interested require. The recent work of Mr. Reginald Blomfeld, A. R. A., at the east end of the building is described in an appendix.
We have received Parts 4 and 5 of The Citator, with the usual supplemente, from the publishing offices in Madras.
interesting, account of the Borstal system comes from the Borstal Association, called Borstal in 1911. The business of tbe association is to look after lads and girls who have been in the institutions. It seems that there is great necessity for longer periods of detention and of licence on release if the time spent in the institution is to bear full fruit.
Part 2 of the first volume of Sbearwood's Bar Examination Questions with Answers (Sweet_and Maxwell Limited) is now out, containing those for the Easter Term 1911.
Two pamphlets on tbe Finnish questions, published in St. Petersburg, bave been sent to us: T'he Finnish Revolution in Preparation, 1889. 1905, being the story as now disclosed by secret documents, by Eug. Feodoroff, translated by G. Dob300 ; and Finland : its Place in the Russian State, by Lieut..General M. Borodkin. According to the latter, the ultimate secret aim of the revolutionaries is the independence of their native land, and their chief hope lies in the speedg bankruptcy of and military impotence of Russia.
WARNING TO ISTENDING LESSEES OF Houses.—Before purchasing or renting a house it is very important to get an independent report 07 the drainage, sanitary fittings, & water supply by an expert from the Sanitary Engineering Co., 65, Victoria-st., S. W. Estab. 35 years. Tel. “Sanitation London.” 'Phone : 316, Westminster. Apply for prospectus.-[ADVT.)
Police Aid Expenses, Health Visitors, Maritime Conventions, Merchan. dise Marks, Rag Flock, and Telegraphs.
BOOKS RECEIVED. Mcad and Botkin on the Criminal Law Amendment Act 1885. Third Edition. Butterworth and Co., Il and 12, Bell-yard, Temple Bar ; Shaw and 0%, 7 and 8, Fetter-lane, E.C. Price 78. 6d. aet.
Shcarwood's Questions and Answers on Civil Procedure and Evidence, Butterworth and Co., 11 and 12, Bell-yard, Temple Bar. Price 69.
Clemson on Methods and Machinery of Business. Second Edition. Butterworth and Co., 11 and 12, Bell-yard, Temple Bar. Price 28. od. pet.
Shaw of Dunfermline (Lord) on Legislature and Judiciary. . Hodder &nd Stoughton, Warwick-square, E.C. Price 28. net.
Best on Evidence. Eleventh Edition. Sweet and Maxwell Limited, 3, Chancery.Jane. Price 253.
Layton's Interest Tables. Charles and Edwin Layton, 36, Farringdonstreet, E.C.
The expression of opinion-it did not amount to a ruling, 4. there was no cabe before the Chair for its decision-by Mr. Emmott, the Deputy Speaker of the House of Commons, on the 3lst ult., that an attack upon the general body of judges, except on a substantive motion, would be out of order, would, if it be pronounced authorita. tively, seriously control freedom of speech. If the rule as so indicated were rigidly enforced, comments in the discussion of proposed legiela tion in relerence to the trial of election petitions, the establishment of special tribunals for certain classes of cases, on the competency or otherwise of the members of the judiciary for the work specified in the Bille, or comparisons on general grounds of fitness for the proposed tasks between ihe members of the judiciary or between the Judicial Bench generally and the members of the new tribunals would be regarded as beyond the limits of Parliamentary discussion, to the serious risk of failure in placing before the House of Commons and the public at large a correct view of the situation with all its merits and demerits.
LEGISLATION AND JURISPRUDENCE.
The Bill introduced by Sir D. BRYyyor Jones on the eubject of the relationship between Nonconformists and the English Church commupion is obviously the result of the recent action of the Bishop of HEREFORD which has been so much canvassed by the episcopal bench. The Bill proposes that any Nonconformist minister may preach or officiate in any English church or cathedral, and a corresponding permis:ion is accorded to the clergy of the Church of England in regard to any Nonconformist chapel. Furthermore, no bishop is to be allowed to inhibit any individual exercising this liberty. The second clause empowers everyone who has attained eighteen years of age to claim the right of admission to the Holy Commuoion notwithstand. ing any non-compliance with the obligations of the Confirmation Service. It is not purposed that anything should be done to remove the disabilities ol those who lead notoriously evil livee, but, on the other hand, no clergy are to attempt to exclude from the Holy Communion any man on the ground that he has married his deceased wife's sister, and there is a corresponding provision in regard to a deceased husband's brother. This carries out in statutory form the effect of judicial decisione. The Bill is, of course, very controversial, and even in the English Church there are two or three currents of opinion flowing upon it. There is, moreover, no general desire for its indulgence in the miods of Nonconformiste. As the bishops have Dearly always stood in the way of such voluntary action as bas been possible, it may safely be assumed that the Bill will be strongly opposed in that quarter. Looking to the rocks in the way and to the lateness of the session, there can scarcely be much doubt as to the failure of the Bill.
The letter read in the House of Commons on the 30th inst. by Colonel Seely, the Under Secretary of State for War, from Lord Robson, a late Attorney-General and one of the Lords of Appeal in Ordinary, which was sent to bim spontaneously by the noble and learned Lord, created a mild sensation in that assembly. Lord Robson, from knowledge he had derived as counsel in practising at the Bar when rota ined against a gentleman whose appointment by the Var Office to some position in its gift was fiercely assailed in the House of Commons, stated that he had arrived at the conclusion, which was subsequently confirmed on freeh investigation in his capacity as Attorney-General, that the charges levelled against this gentleman were unfounded. A communication of this obaraoter from a Lord of Appeal to be read in the House of Commons is unusual, if not unparalleled. Lord Robeon's elevation of motive in making it is unquestionable, and his standard in reference to professional etiquette of the highest. At the same time if Lord Robson as a member of the House of Commons were to make a similar communication in that assembly, although quite in order, it might at first sight seem to contravene the rulo enunciated in de bate on the 22nd June 1858 and in Feb. 1893 by some of the most eminent members of the Bar, supported by the opinions of judges thero cited, precludiog all interference by members who had been counsel in any case in any discussion even remotely relating to any matters in wbich they had been professionally engaged, except by way of explanation to which such intervention should be strictly confined. It is quite true that members of the House of Commons have not infrequently in discussions in the House of Commons referred to cases within their experience as practising barristers, notably Sir Fitzroy (Lord Chief Baron) Kelly in his moving in 1844 for leave to introduce a Criminal Appeal Bill, and Sir Charles (Lord Chief Justice) Russell in 1887 in committee on a Bill for the admission as witnesses of accured persons in criminal cases; but these references were by way of illustration for the purposes of discussion, and did not tend, however remotely, to affect the position, adversely or otherwise, of any individual.
The adjournment of the House of Commons for the White antide Vacation practically means that nothing of much moment will occur in the political world until the Coronation is over. Looking back over the wide and controversial area of recent politice, it is amazing to note with what impassiveness the country is watching the progress of affairs. Some may think that this is indicative of complete approval ; others believe that quiescence is not tantamount to acquiescence, and that the electorate is confident that some settlement will be arrived at. A third school holds, and perhaps with considerable ground, that the public is thoroughly sick of politics, and is intent on spectacular displays after the severish excitement of general elections. Whatever may be the true cause, it is at any rate certain that only the most languid interest can be aroused in proposals which entail such changes in our national arrangements and involve the expenditure of so large a eum of public money. Meanwhile Parliament bas, up to the date of the adjournment for the brief Whitsuntide Vacation, obtained the Royal Assent the Congolidated Food (No. 1) Bill, a formal measure, and also to the more controversial Bill dealing with the Revenue 1910. 1911. The Army Annual Bill and the Aerial Navigation Bill have also received the Royal Assent. The Parliament Bill is, as we all know, before the Lorde, and the Commons have before them three measures passed by the Upper House-viz, those dealing with the County Courts, Perjury, and Lunacy. In the Commons three most complicated Bills are in their Grand Committee stage--viz., those affecting Copyright, Shops, and Coal Mines. The following have been read a second time in the Commons : The Small Holdings and Allotments Bill and measures connected with Trade Unions (Osborne Judgment), National Insurance against lovalidity, Railway Companies' Accounts, and others of less public importance. The first reading etage has been passed by Bille dealing with Aliene, Education, Finance,
THE reference in Mr. Butcher's motion of censure to the official position of the Home Secretary in regard to the administration of justice and to the relations which ought to exist, and have always hitherto existed, between His Majesty's judges and the Home Secretary is probably grounded on the fact that the Home Secretary is the adviser of the Crown in the exercise of the royal prerogative of pardon, and that in deciding on the claims of a convioted prisoner upon the royal clemency, which still appertains to his office notwithstanding the establishment of a Court of Criminal Appeal, he invariably seeks, and is generally guided by, the advice of the judge before whom sucb prisoner was tried, and that, in a word, the Home Secretary is the controller and overseer generally of all matters relating to the post.judicial administration of the criminal law, and as such is necessarily brought into relations which entail confidential communications with members of the judiciary.
It is a moot point whether the motion is to be construed as a motion of censure on the Cabinet-collectively or on the Home Secretary individually. In certain cases, such as that of the mode in which the prerogative of pardon is exercised, it is not customary for bis colleagues in the Cabinet to assume any direct or recognised sbare in the obligations which tbis duty imposes on the gentleman for the
tire boing Homo Secretary. In the event of Parliament finding it necessary to express disapproval of the grant or denial of a pardon in any particular case, their consure would, as a rule, be deemed to fall upon the head of the Home Seoretary alone, and to involve no other consequence than that of his personal retirement from office. For the words, however, of a Home Secretary spoken in debate in support of a Government measure in relation to his own department it would seem that the Cabinet would in ordinary course accept responsibility. The responsibility becomes necessarily corporate and Ministry and Minister mast stand or fall together in cases where the aot of an individual Minister is in such consonance with the general policy of the Government that they feel it impossible to repudiato it, or in cases where the retention of such Minister in the Cabinet is deemed essential to its existence or to be secured at any cost, or, lastly, in cases where the act is only departmental in form, and is in reality but a step in the due execu. tion of a plan of action already resolved on by the Cabinet at large : (see Traill's Central Government, pp. 26-27). If time be accorded for the discussion of Mr. Butcher's motion, the conduct of the Home Secretary which is impugned would be likely to be regarded as falling under these categories—one, or some, or all-and, as such, a matter for the assumption of responsibility by the Government collectively.
Judicial Benoh should be scrapulously restricted to men of the highest professional reputation, who will op all occasions discharge the duties of their great office with efficiency and dignity, and with completo freedom from political or class prejudice cr bias." No doubt the possibility of an amendment such as this was considered by Mr. Butcher before be handed in his motion. Whether the public interest would not be better served by avoiding a debate may be an open question ; but it is certain that a discussion would be eagerly welcomed by Mr. Churchill, and, for reasons of their own, by the groups below the gangway. Such a discussion could not fail to be fertile in worse thiogs than verbal indiscretione, for some of the Radicale are anxious to make a direct attack on certain judges in connection with recent election petitions. In this the Speaker has thus far thwarted them. Possibly on his return to his duties he may be able to find a way of removing both the motion and the amendment from the order pa per.
OVERSEA PARLIAMENTARY REPRESENTATIVES.
THE LEGAL CONTINGENT. A COMMITTEE of the British Lords agd Commons is at present busily engaged in arranging a month's programme of entertainment for some filty members of Parliament of the Oversea Dominions during the Coronation period. This is the first time in the history of the Empire that an invitation bas been extended to the members of the Oversea Parliaments of the British Empire by their confr. res at Westminster, and the programme of hospitality includes a fortnight in London, including a seat in Westminster Abbey on the occasion of the King's Coronation-and & provincial tour extending over a similar period. As the Home Parliament is remarkable for the attraction it poseesees for members of the Legal Profession, so in the Parliaments of the Oversea Dominions we find the law is well represented. Among tho Oversea Dominion Parliamentary delegates who bave accepted the invitation of the Lords and Commons Committee the following may be included among those learned in the law :
In the House of Lorde, on the 1st ingt., the Aerial Navigation Bill was read a second time and passed through all stages, the Standing Orders having been previously suspended for the purpose.
In the House of Commons, the orders for the second reading of the Solicitors (Scotland) Bill and the Sheriffs Substitute (Scotland) Bill were discharged and the Bills withdrawn.
Mr. 0. Locker-Lampeon asked the Prime Minister whether his attention bad been drawn to a recent decision of the General Medical Counoil in regard to a medical practitioner connected with the Sandow Instituto ; and whether he would consider the advisability of recom. mending an inquiry by way of Poyal Commissiou into the constita. tion of and powers exercised by the General Medical Council.-Mr. Asquith : No, sir ; I see no sufficient reason for instituting such an inquiry.-Mr. O. Looker.Lampson asked whether the right hon. geotleman was aware that the General Medical Council was the only professional tribunal with disciplinary powers which practically occupied tho poeition of prosecutor, judge, and jury, and whether be considered the possession of such powers to be consistent with the principles of justice.-Mr. Asquith : I do not in any way agree wiïh the hop, gentleman's description of the position and functions of the General Medical Council.
Mr. Arnold Ward asked the Home Secretary whether his attention had been called to a speech made by Mr. Cecil Chapman, one of the magistrates of the police-courts of the metropolis, at Chorley Wood on the 25th May, in support of women's suffrage, in which he attacked the law as unjust and unequal and accused the Government of cruelly sweating the women in their employment; whether the delivery of speeches of this character by magistrates of the police-courts of the metropolis was permitted by the regulations of their service; and, if not, whether he proposed to take any steps in the matter.-Mr. Wedgwocd Beod, who replied, caid: The attention of the Home Secretary had not been drawn to the speech referred to until the hon, member sent him a newspaper report containing it. He has communicated with the magistrate on the subject.
Mr. Arnold Ward asked the Prime Minister whether the Govern. ment, before giving facilities for the full consideration of a Women's Enfranchisement Bill in the House of Commons, would afford an opportunity to the elootors to give a verdict on this issue.—Mr. Asquith : I am not able to give any such assurance. Lord Hugh Cecil inquired whether the Government, in determining what facilities should be granted for this Bill, would have regard to that principle of the supremacy of the House of Commons to which they had recently aocorded such sincere expression in the Parliament Bill ?-Mr. Asquith : That does not arise in the least out of the question.-Mr. Aruold Ward : Is it the intention of the Government to coppive at the disposal by Parliament of a first-class constitutional question which has never been before the country ?-Mr. Asquith : It is the intention of the Government to fulfil the pledge they gave before the last General Election.
Australian Commonweal:h. Hon. G. W. Fuller. M.P., barrister, born at Kiama. New South Wales ; elected to First House of Representatives ia 1901, and now represents Illawarra in the Commonwealth Parliament.
Sir John Quick, M.P., born at Trevassa, Cornwall, Eogland. Emigrated with bis parents when two years of age, joined newspaper reporting staff when fourteen, and subsequently joined the literary staff of the Melbourne Age. Qualified as a barrister, and gained the degree of LL.D. at Melbourne University with first-class bodoors. Is the author of many books on legal subjects, and is a recognised authority
Constitutional Law. Was elected member for Bendigo in Victorian Parliament, and originated the plan for the Federal Convention to frame an Australian Constitution, then became a member of the Federal Convention which drafted the Constitution, and was knighted in recognition of his Federal services. Elected a member of the first Parliament of the Australian Commonwealth, and was appointed Postmaster-General.
Canada. Hon. Frank B. Carvell, LL.D., M P., who was born at Bloomfield, New Brunswick, and was elected to the Brunswick House of Assembly in 1889, and to the Canadian House of Commons 1904.
Hon. George E. Foster, LLD, M.P., who was born at New Brunswick. Elected to the Canadian House of Commons 1882, and has been Minister of Marine and Fisheries and Minister of Finance.
Hon. Hugh Guthrie, K.C., born at Guelph, Ontario. Called to the Bar Jan. 1888. Elected to the Canadian House of Commons 1900.
Senator Hon. J. A. Lougheed, K.C., is senior member of the legal firm of Lougheed and Bennett. Practised law in the City of Toronto 1881; moved to North-West Territories 1883; Q C. 1889, in whiob year he was called to the Senate of Canada, and since 1906 has been leader of Conservative Opposition.
George E. MoCraney, B.A., LL.B., M.P. Liberal. Elected to Canadian House of Commons 1906.
Senator Hon. Lawrence G. Power, K.C., P.C., LL.D., born at Halifax, N.S. Entered Senate 1877, and appointed Speaker 1901. Liberal.
John H. Sinclair, LL.B., M.P., born at Gregsboro, N. S. Member of Nova Scotia Legislature 1891-1904 ; elected to Canadian House of Com 1904. Liberal.
Alexander B. Warburton, KC, DC.L., M.P. of Queens, Prince Edward Ielapd. Elected to Legislature of Prince Edward Island 1891 Premier of the Province 1897.98; Judge of King's County Court 1898-1904; elected to Canadian House of Commons 1908. Liberal.
Commenting on Mr. Churchill's observations attributing unconscious bias to His Majesty's judges in actions involving class and party issues, and the motion of censure which stands in the name of Mr. Butcher on the list of notices for which do day has been fixed, the London correspondent of the Birmingham Daily Post says: Should an opportunity be found for the discussion of this motion after the reassembling of the House of Commons, Mr. King, one of the Radicals below the gangway, who has an even legs aoute sense of the fitness of things than Mc. Churcbill himself, will move an extraordinary amend.
It will transform the motion of censure into a declaration that the “ administration of justice in England by His Majesty's judges is ceasing to command universal and implicit confidence ; that there is adequate ground for serious uneasiness as to the invariable impartiality of that administration ; that a continuince of any lack of confidence in the judges would be disastrous ; and that it is of the utmost importance in the public interest that appointments to the
Newfoundland. His Honour William Warren, Speaker of the Newfoundland House of Assembly.
New Zealand. Hon. Sir Charles C. Bowen, M.L.C., F.R.G.S., born at Milford, county Mayo, Ireland. Educated at Rugby and Cambridge. Arrived in New Zealand with first Canterbury settlers 1850. Resident magis. trate for Christchurch 1864, for ten years. Called to Legislativo Council 1874. Minister of Justice. Subsequently held portfolios in different Administrations. Antbor of the Education Act of 1887. Vice Chancellor of New Zealand Coiversity 1903. Appointed to
central part of his façado bad been incorporated ioto a municipal building, tbe maison de santé Amyol, which had been constructed for the municipality by M. Bureau, a local architect. The proces was between the beirs of the two arcbitects and M. Garnier, tbe tben Mayor of Rogan, under whose instructions the building was erected. Me. Meurice Taesin appeared for tbe representatives of M. Lepoir, a well-known manufacturer of Nanter, and Dr. Lenoir. a hospital surgeon. Me. Vainfeld was intrusted to defend the alleged plagiarism, and the interests of the town of Royan were placed in the hands of Me. Pierre Blanchon, formerly bitonnier of the Bar at La Rochelle. That the good faith of the municipality should be called in question, we read, is somewhat hard, and it has to support the consequences of an imitation over which it had no control, and, as evidence of its bona fides, the municipality has, through counsel, intimated its willing: neds to substitute on a memorial stone on the building the name of M. Lenoir in place of that of M. Bureau. The president of the court, M. Gibou, intimated that, in view of the difficulties surrounding the action, the court would reserve jadgment.
Legielative Council for second time 1391 (life member). Appointed Speaker July 1905.
South Africa. Chris. L. Botha, M.L.A., J.P., born at Kroonstad, Orange River Colony. Attorney: barrister, Middle Temple. Doctor of Laws, l'oivereity of Amsterdam. Ex-Mayor of Blomfontein. Fought on Dutch side during the war. Now is the only Progressive member for Orange River Colony in Upion Parliament. Joel Krige, M.L. A., Chief Government Whip. Solicitor.
Senator William Fuller Lance, born at Houghton Regis, Bedford. phire. Solicitor and notary. Mayor of East London 1889. Chairman Transvaal University College and remains member of that council; also member of Transvaal Parliament before l'ojon.
Hon. J. T. Molteno, B A., LL.B., M.L.A., born at Claremont, son of Sir J. T. Molteno, first Premier of the Cape of Good Hope, and brother of Mr. P. A. Molteno, member for Dumfriessbire in the British House of Commons. Speaker of Cape House of Assembly and Speaker in present Union Parliament. Barrister of the loner Temple.
Senator Hon. Sir Edward Philip Solomon, K.C.M.G., eldest son of the late Rev. Edward Solomon, and sister of the lale Dr. James Matthewe, Lord Provost of Aberdeen. Educated at the School for the Sons of Pliesionaries, Blackbeath, and the Gymnasium, Old Aberdeen. Admitted a solicitor 1868 ; practised at King William's Town and Cape Town; removed to Johannesburg 1887; senior member of the firm of Solomon and Thomson, and subsequently of the firm of Solomon, Hull, Webber, and Wentzel; retired in 1905; formed the Responsible Government Association to secure responsible government for the Transvaal; returned Ag member for Fordaburg in the Transvaal Parliament ; beld the portfolio of the Minister of Public Works in the Botha Ministry.
Lord Rosebery is chairman of the Lords ard Commons committee for entertaining the representa ives of the Dominion Parliamenta, with Mr. W. Hayes Fisher, Y.P, as deputy chairman. A capable and enthusiastic bonorary secretary bas been secured in the person of Mr. Howard d'Egville, barrister, of the Middle Temple, and one of the assistant secretaries is Mr. C. W. Arnett, barrister, of Gray'e-ion.
CRIMINAL LAW AND THE JURIS
DICTION OF MAGISTRATES. .
The sensational pearl necklace fraud case, which terminated in Edin. burgh on the 3rd inst. by the conviction of the prisonere, has attracted so much attention that it may well emphasise in one important particular a marked difference in the criminal procedure of Scotland, of England, and of Ireland. Although witnesses were examined for the defence and a law officer of the Crown, the Solicitor General, was prosecuting in person, counsel for the prisoners had the general right of reply, or the last word to the jury. In this country, wben witnesses are called for the defence, counsel for the Crown has the last word, but when no witnesses for the defence are called, prisoner's counsel has the last word, except in cases where the Attorney-General or the Solicitor General may be prosecutiog in person, when the right, if exercised, is invariably the subject of strong protest by counsel for the defence. In Ireland, every Crown prosecutor, as representing the Attorney General, bay, and invariably exercises, even when no witnesses are called for the defence, the right of reply. In the Bill on which the Prisoners' Counsel Act of 1836 was framed, it was originally provided that prisoners' counsel should in every case have the right of reply. The clause containing this provision was el minated in committee.
For several weeks Italy bas bad before its courts two celebrated cases-the Camorrist trial at Vitebro, and what is known to readers of the French Pregs as le procès du modernisme. Briefly, the latter cause is a libel action by Father Bricarelli, a Jesuit, against Gustavo Verdesi, a former member of the order, now associated with the Wesleyans in Rome. Verdesi was interested in the Modernist move"ment, and this culminated in his leaving the Church. Father Bricarelli was Verdesi's confessor, and on the 12th April two lay newspapers, the Secolo and the dressagero, under the title of “Scandal of the Confessional,” each published an interview with Verdesi, who accused Bricarelli of violating the seal of the confessional to his detriment. One point of interest to the lawyer is that the couit, after deliberation, decided, even if Verdesi released the clergy men wbo bad teen his confessors from the “sacramental secret,” it had no power to compel them to state wbat had passed in the confessional. The other point was as to the status of the Vatican; that is, the Pope and the Sacred College. Counsel for the ex-priest Verdesi desired to interrogate the Pope as a witness. This led to a demonstration resulting in the court dealing with the request withio closed doors, to avoid diplomatic incidents, for by the Law of Guarantees the Pope is considered a Sovereigo. Counsel for Verdesi also wished to call certain cardinals. This raised the question as to whether the cardinals had not the right to demand that they should be interrogated, at their place of residence, as dignitaries of the Crown, notably the Knights of Annunciation, Italy's highest order. The cardinals whom counsel desired to call were their Eminences Respighi and Martinelli, who intimated that tbey held themselves at the disposition of the court, but that their evidence must be taken at the Vatican, and the grounds of their contention were tbat in the days of the temporal power tbey ranked as Princes of the Blood, hence their title of Princes of the Church ; that every cardinal in effet might be considered as a possible successor to the Pope, since the Conclave might select him; therelore the position of a cardinal was that of a Prince of the Blood who might be called upon to succeed the reigning King; and that the Law of Gaarantees recognising the Pope as a Sovereign and declaring that be bad the same dignity as a head of a State, acknowledged thereby that a cardinal is able to claim the same privileges as any other prince. The court adopted the contentions of the cardinals, for we read : • Les éminences Respighi et Martinelli viennent donc d'etre entendues en témoignage à domicile.” Only the Vitebro case remains, for on Monday night the Verdesi trial concluded. The ex. priest was found guilty, and condemned to ten months' imprisonment and to pay a tine of £33 in addition to costs.
CONTESTING on Mr. Justice Channell's remark (ante. pp. 19, 20) that “prison, nowadaye, was made too pleasant,” the Penal Reform League Monthly Record euggests the following coosiderations to his Lord ship and others of like mind :
(1) A large proportion of the people who prefer prison to the workhouse or to otber conditions outside are feeble.minded, old or sbiftless persons, who should never be sent to prison. They should either be given employment, trained to work, or permanently cared for in conditions where they can lead useful and happy lives under supervision.
(2) It is not the business of prison administrators to consider whother prison life is pleasanter than the life of their charges outside. but simply and solely whether it is such as to enable them to lead a useful life outside again. If prison is pleasanter for these people than their life outside, then that is a great disg:ace to the world outside and is the business of people outside to remedy. It is not the business of prison administrators to make prison life worse, but for the other people to make outside life better. A great many honest people are constantly short of food and necessaries. Ought the prison officials, therefore, to starve their prisoners ?
(3) The question about our prisons is not whether they are too pleasant or otherwise, but wbether they develop character and enable prisoners to earn an honest livelihood when they come out again, and whether we are sending people to prison who ought not to be sent there :
(4) If it is intended to suggest that our prisons are partisularly attractive to the loafer, then that is surely a most ecathing condem nation of them, and one which, we fear, is not without foundation. What sensible people complain of is that prisoners are taught to loaf, or work in a dead-and-alive way, without exertion of mind or will or moral faculty.
A CASE dealicg with the application of the law of the 11th March 1902, which gronts to architects the same protection for their works which already obtaing as regards other artists, has just come before the First Chamber in Paris in very unusurl circumstances, for the parties most interested have been removed from the scene by death. These are the circumstances : M. Lenoir, an architecte parisien fort distingué, bad in 1887 designed a casino at Gourmalon, near Pornic. Many years afterwards he was at Royan, and then noticed that the
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