children without a licence are to be guilty of a misdemeanor. Power is given to justices to revoke the licence; and a licensee must give notice to the coroner of the death of a child twentyfour hours after the event. The punishment for an offence within the Act is not to exceed six months' imprisonment.

WE cannot but deem it unfortunate that the ATTORNEY-GENERAL should have thought it necessary in the course of his speech in the TICHBORNE case, to refer to the constitution of the firm of attorneys who are conducting the case of the claimant. Whether Mr. Rose had withdrawn from the firm or not, could by no possibility form an element for the consideration of the jury, and the assertion that he had done so naturally called forth a letter of explanation which was calculated to have a bad effect upon the claimant's cause. Mr. ROSE has had a difference with Mr. BAXTER and Mr. NORTON, but until there had been a change of attorneys by order of the court, that difference was a private matter not in evidence, and to surmise inaccurately with reference to it was straining the licence of counsel to the utmost. And in our opinion Mr. ROSE, considering the moment inopportune for giving an explanation, should have contented himself with saying that he had not withdrawn from the firm. The ATTORNEY-GENERAL made a point of the fact that attorney after attorney had been kept out of the box by the claimant's counsel; and most wisely and properly according to our view. Under ordinary circumstances, it is frequently a difficult matter for attorneys to give their clients the full benefit of the privilege which the law throws around the relationship; but under cross-examination this difficulty would have been multiplied an hundredfold. The personal opinions and private transactions of the attorneys employed by the claimant at various times, have no bearing upon the case, and as mere opinion is always inadmissible in evidence, all conjecture or inference on the subject should be carefully avoided.

Ir may fairly be expected that we should give expression to the general opinion in the Profession with reference to the conflict, for such it must be called, between the ATTORNEY-GENERAL and the counsel for the Tichborne claimant on Wednesday. The prevalent feeling and opinion is strongly opposed to the course pursued by the ATTORNEY-GENERAL. The primary question is, Has any counsel a right to impugn the honour and integrity of counsel opposed to him on grounds such as those advanced by the ATTORNEY-GENERAL? The learned gentleman concludes that a certain piece of evidence proves fraud, and that such evidence cannot be rebutted. He concludes further, that this conviction has also been brought home to the minds of his opponents, and he charges them, as counsel, with being accessories in the fraud, unless they at once throw up their briefs. As interpreter, by his position, of the rules of etiquette governing the Bar, Sir JOHN COLERIDGE would undoubtedly be justified in expressing this view if his opinion were taken upon the point. But immediately that he constitutes himself the censor morum in a yet undecided cause, in which he is acting not as ATTORNEY-GENERAL, but simply as an advocate, and condemns his opponents as accessories in a fraud unless they pursue a certain course, he frames a dangerous precedent-a precedent calculated to promote indecent displays of temper in our courts of law to the confusion of suitors and the detriment of the Profession. We are not at all sure that he is right in drawing a distinction between the duties of counsel in defending a man whom he knows to be guilty, and in upholding a suit which, in his own mind, he believes to be dishonest. But to add that counsel in the latter case is to usurp the functions of the jury, and anticipate their verdict by throwing up the case, and that if he fails in this, he is a participator in the villany of his client, is to propound a principle most difficult of application, and which, if accepted, might lead to disastrous consequences. We believe, therefore, that the protests of Serjt. BALLANTINE and Mr. GIFFARD have the cordial approval of the entire Profession.

It has been laid down that where a man, in possession of property under a title which turns out to be invalid, has made improvements, a court of equity will not interfere to give him compensation, if possession is recovered at law; on the other hand, if recourse is had to equity to obtain possession, compensation will be allowed. The former part of the rule is laid down in Needles v. Wright (Nelson Ca. 57), where it is said, "No fraud being proved, verdict passed for the defendant, and therefore this court will give no relief." The civil law would have decided differently, and applied the term dolus malus to the case of a man so taking advantage of improvements made by another. In Sandon v. Hooper (6 Beav. 248; and 4 L. T. Rep. N. S. 249), it was held that a mortgagee is not entitled to recover for improvements made without the mortgagor's consent. But the claim of a mortgagee is less strong than that of a bona fide holder under a mistaken title, for the former knows of necessity the qualified nature of his interest, while the latter does not. Moreover, it would be hard that the mortgagor should be put to extra expense in redeeming his property, or, in other words, be built out of his inheritance. Less

strong, too, and for the same reason, are the claims of tenants such as those whom the Irish Land Act was passed to assist, and yet the Legislature thought they ought to be protected. The rule is commented upon in Story on Equity, and disapproved of. The English law contemplates the possibility of a person mistaking his title, as is shown by the principle that a vendor is not liable for damages in selling an estate to which he wrongly thinks himself entitled; and if it gives protection in such a case, should it not rather indemnify the innocent improver of another man's inheritance? A case has lately occurred showing the extreme injustice of the rule in question. Portions of a large settled estate were assumed to be let on building leases, which there was really no power to grant, and, after a considerable outlay had been made by the various lessees, the effect of which was to cover a large tract of unproductive land with valuable house property, they found themselves liable to eviction before the terms of their leases were expired without compensation. On the whole, we cannot help thinking it doubtful whether the rule is conclusively settled, and we should much like to see the question thoroughly fought out, in the hope that the House of Lords might, by a righteous judgment, settle the matter in a satisfactory manner.

THE LAWYERS' INDICTMENT AGAINST THE
GOVERNMENT.

As a legal journal, representing lawyers generally, it is immaterial to us which political party may be in power. Whichever set of men deals fairly with our great profession, and avoids unneces sarily shocking its prejudices, or riding roughshod over the principles which it professes, will receive every consideration at our hands.

It is therefore with no feelings of triumph that we describe the indictment which must necessarily be preferred by lawyers against the Government, unfortunately involving principles of the Consti tution, as well as matters of detail of small importance, however irritating. Had it been determined beforehand to render Lord HATHERLEY'S tenure of office memorable as obnoxious to lawyers, the success of the scheme could not have been more complete than is the result of unpremeditated action. We referred a short time since to the circumstance that Treasury officials have condescended to review the expenditure in postage stamps connected with criminal prosecutions, and we could hardly begin with a more insignificant subject of complaint. But the parsimonious interference with the functions of a local taxing master will receive little attention at the hands of Parliament, the probability being that under the advice of the Queen's Bench the Treasury will reconsider its proceedings.

The indictment, indeed, need contain two counts only, upon either of which, if convicted, the Government must confess itself disgraced. The first relates to inferior judicial appointments; the second to the translation of Sir ROBERT COLLIER. It is, perhaps, a hardship upon individuals that their names should be constantly in the mouths of the public because the Government has been weak enough to gratify their reasonable though presumptuous ambition. When our legal system was upon its trial, it was in the highest degree unwise to make its important offices a refuge for political or personal claimants. The recent appointments to County Court judgeships, with perhaps a single excep tion, have been unjustifiable, and, indeed, absurd. So much so, that County Court law will very soon become as much a byeword as justices' justice has been for many years past. It is really deplorable that this should be the case when the Bar offers material of the highest order, and calculated to dignify and im prove the administration of the law in the inferior tribunals. Mr. WATKIN WILLIAMS, we believe, is pledged to prefer this charge of reckless distribution of patronage against the Government.

The more serious question of Sir ROBERT COLLIER'S translation is the subject matter of the second count of our indictment; but this is not merely a lawyer's grievance. Never, perhaps, has a judicial appointment excited such an universal outcry, for the gravity of the blunder is palpable to the meanest capacity, legal or lay; and we are glad to see that the motions on the subject are to be made by members of the two houses of Parliament having no immediate connection with law, namely, Earl STANHOPE in the Upper House, and Mr. CROSS in the Lower. Mr. CROSS does not tell us what form his resolution is to take. Earl STANHOPE, on the other hand, couches his motion in the strongest terms. He will ask the House of Lords to say that the acts complained of were "at variance with the spirit and intention of the statute and of evil example in the exercise of judicial patronage." As Mr. GLADSTONE invites a fair trial on the merits, we can hardly, with courtesy, say more upon the subject. "Short of treason," said the PREMIER, " no heavier charge can be made against a minister than the deliberate evasion of an Act of Parliament." The gravity of the situation therefore is thoroughly appreciated, and we must assume that Mr. GLADSTONE and the LORD CHANCELLOR see a way out of their difficulty.

Another matter which ought certainly to be brought against the Government is the manner in which it has constituted the London Court of Bankruptcy-a court of appeal from all the County Courts in England and Wales having bankruptcy juris-

diction. During the present and the ensuing month, ViceChancellor BACON will sit only six days in bankruptcy, the remainder of his time is entirely absorbed in the general business of his court as a Court of Chancery. The Bankruptcy Act is an unwieldy piece of machinery, and we have the high authority of Lord Justice JAMES for saying that only a few of its provisions can be considered clear. An enormous amount of business is transacted under it by the London Court of Bankruptcy, but the bulk of it is left to registrars, from whom appeals constantly go to the LORDS JUSTICES; and certainly there is no court in the country which more loudly demands efficient supervision, and the Government should be urged to appoint a Chief Judge, whose sole duty shall be to attend to bankruptcy business.

We are fully aware that the Government has business on its hands of a more serious nature than any to which we can draw attention, but this fact offers no excuse for neglecting the interests of the country in the matter of legal procedure. The QUEEN'S speech refers to Lord HATHERLEY'S reforms, and there certainly could be no better introduction to their adoption than a thorough investigation into the existing system of legal patronage, and Government supervision of legal procedure. No reform will work well which does not place the distribution of legal patronage on a more reasonable basis than it rests upon at present, by shutting the approaches to the bench against ill-qualified political partisans, or useful but ignorant subordinates.

ANOTHER ANOMALY IN THE LAW OF LUNACY. ACCORDING to the present law, it appears that an alleged lunatic, not found so by inquisition, detained in custody under the usual medical certificates, cannot be discharged except by the Commissioners in Lunacy themselves, or by the party detaining him. It seems essential to the ends of justice that this power should be vested in the LORD CHANCELLOR also.

A case may be brought before the Court of Chancery, for example, under sect. 54 of the Lunacy Regulation Act 1853 (16 & 17 Vict. c. 70), on a report of the Commissioners that the property of an alleged lunatic is not duly protected-(which case the Act directs shall be tantamount to, and proceed and be conducted as, a petition for inquiry)—the court may be of opinion that there is no case for an inquiry, and be in favour of an immediate discharge, and yet all that it can do is to remit the matter to the Commissioners for their consideration, accompanied, it may be, with a suggestion (which has no legal validity), that it is a case proper for a discharge. The Board is left to act according to its own conscience and discretion; considerable delay may ensue, and the alleged lunatic be detained on insufficient evidence.

on to

A notable instance of the evils which flow from such a state of things occurred recently in practice in a case reported in the Times, in its earlier stages, on 6th July last. In Dec. 1869, F. J., a person alleged to be of unsound mind, was placed in an asylum at Peckham upon the certificate of two medical men in the usual way, at the instance of his sister. Seventeen months after, viz., on 24th April 1871, the Commissioners, having "reason to suppose that his property was not duly protected, and that the income thereof was not duly applied for his maintenance" (it does not appear why they did not make this discovery sooner, as we think they might), made a report to the LORD CHANCELLOR to that effect under the powers given to them in sect. 94 of 8 & 9 Vict. c. 100. On 27th May 1871 the report came be heard before the LORDS JUSTICES. A good deal of evidence was offered on the subject of F. J.'s sanity; and the LORDS JUSTICES directed the consideration of the report to stand over till a visitor in lunacy had reported on the case, and they accordingly sent a visitor to do so, who reported on 2nd June in favour of F. J.'s sanity. On 10th June the report of the commissioners again came on for hearing before the LORDS JUSTICES, who expressed an opinion that it was not a case for an order of inquiry, and directed it again to stand over in order that the visitor's report might be laid before the commissioners with a view to see what course they would decide on. This opinion of the LORDS JUSTICES was, in accordance with their express direction, communicated by F. J.'s solicitor immediately to the commissioners, who replied that they had received no communication from the LORD CHANCELLOR OF LORDS JUSTICES upon the subject, but that it should receive their special attention at their next visit to Peckham. Some other letters and interviews passed between the board, F. J.'s solicitor, and the solicitor to the Suitor's Fee Fund, who had been appointed to take proceedings upon the commissioners' report, and on the 17th June 1871, two of the board visited F. J., and stated their opinion that he was still of unsound mind, and that they could not promise to promote his discharge at present; and the board (nettled it would seem by not having received any personal communication from the LORDS JUSTICES) adhered to their opinion that they could not move for his discharge. The original report of the commissioners of the 24th April 1871, was then heard before the LORD CHANCELLOR, who intimated his opinion against an inquiry; but being unable himself to order the discharge, ordered the case to stand over, that he might write to the commissioners; which he accordingly did through his secretary, suggesting a temporary release of F. J. on trial; and, if at the end of that time he manifested no

stronger symptoms of unsoundness than were then apparent, a complete discharge. To the former suggestion the commissioners assented; as to the latter they object to the report of their colleagues of 17th June. The advisers of F. J. being thus, as it were, in a cleft stick, and driven into a corner, a scheme for his temporary removal was, as an expedient for his immediate relief, and as a compromise with the commissioners, submitted to and approved by the LORD CHANCELLOR (which has since been carried into effect), and the matter ordered to stand over till the November following; the alleged lunatic having, as the price of this compromise, which his medical attendant considered essential to his health, to pay all the costs up to that time. On 11th Nov. 1871, another doctor having again visited and pronounced him sane, the report of 24th April was once more heard before the LORDS JUSTICES, and an order made by them that no sufficient ground for inquiry appearing, they refused to make any order for such inquiry. After this order the commissioners still refused to discharge F. J. and required him to return to the asylum to be visited by them, promising to discharge him if they thought him fit. Under advice, he did not return, and was shortly afterwards released by his sister, who had signed the order for his admission, and with whom he is now living.

Now, here was, first, a grave injury done to the person whose benefit is always supposed to be the first object to be considered in cases of this kind; for he was detained certainly six monthspossibly two years-on what appeared to the highest judicial authority insufficient evidence; and, secondly, there was what we cannot but consider an unseemly conflict between two tribunals— each professing to deal with the case. Mere concurrence of jurisdictions is not of itself an evil, and'does not necessarily work injustice, so long as they run parallel to each other, and each is in itself airagens (to use a favourite word with a living Ex-Chancellor), but the moment they conflict or cross one another, that moment mischief ensues. Now, that was clearly the effect of the divisum imperium here. The LORDS JUSTICES saw no case for an inquiry, the LORD CHANCELLOR saw no case for it; the commissioners did. The LORD CHANCELLOR's Visitor in Lunacy reported that F. J. could not be deemed of unsound mind; the commissioners themselves by their own personal examination satisfied themselves that he could. Neither can, we think, anything be clearer than that the power to discharge should have been possessed by the LORD CHANCELLOR. The anomaly lies in this, that the matter was forced on him by the Legislature, without the power to work it out, but he must needs send it for that to a vastly inferior tribunal an indignity, one would have thought, which our Legislature would not have willingly imposed on so high an authority entrusted with the prerogative. We fear nothing but Parliament can remedy this. The power of the LORD CHANCELLOR to make general orders scems to extend only to matters of practice and procedure. We would recommend, therefore, such of our legislators as take an interest in these matters, and, indeed, the Government itself, to bring in a short declaratory Bill which shall enact that if, on a report of the commissioners, the LORD CHANCELLOR himself is of opinion that there is no case for inquiry, or if a master or a jury, on an order for inquiry, shall be of opinion that any alleged lunatic in custody is not of unsound mind, the LORD CHANCELLOR may order his immediate discharge.

THE LIABILITY OF UNDERWRITERS ON GOODS FOR FREIGHT AFTER ABANDONMENT. THIS branch of marine insurance law is at present in a most uncertain and unsatisfactory condition. Many years ago Lord Mansfield laid down the general principle that underwriters on goods have nothing to do with the freight: (Baillie v. Moudigliani, 1 Park. Ins. 116.) That learned Judge said "As between the owners of the goods and the underwriters upon the cargo, the latter have nothing to do with the freight. The owner of the ship has a lien for his freight; but in a total loss, literally so-called, no freight is due. In case of a loss, total in its nature, with salvage, the owner of the goods may either take the part saved, or abandon; but in neither case can he throw the freight upon the underwriters; because they have not engaged to indemnify him against it." No further reason is given for the judgment, which, it will be observed, may be said to go to this extent that an abandonee who takes the salvage of a cargo on which a shipowner has earned freight, is not liable to pay that freight, but can take the benefit without the burden.

The above is the only case upon the point which has been decided in this country, but we observe that Mr. Maclachlan, in his fourth edition of Arnould (p. 866) cites a recent case in opposition to what he calls the well-established rule. That case is Dakin v. Oxley (33 L. J. 115, C. P.; 10 L. T. Rep. N. S. 268), which was an action on a charter-party, and had nothing to do with marine insurance. What this learned author says is somewhat striking, and seems to involve a contradiction. "In this country," he says, "it was long ago decided in the case of Baillie v. Moudigliani, and is undoubtedly established as the general rule, that the assured cannot in such cases"-having just referred to cases where the abandonee takes the salvage-throw the loss on freight upon the underwriters on goods, and this on the plain

principle that they have not, by the terms of their contract, engaged to indemnify him against it." Then he adds this: "But as the effect of an abandonment is to subrogate the insurer into the rights and liabilities of the assured, the insurer cannot take to the subject abandoned without thereby drawing upon himself the legal liability as owner of the goods to whatever freight may at the time be payable in respect of them." For this he quotes Dakin v. Oxley and the maxim Qui sentit commodum sentire debet et onus.

On referring to the first edition of Arnould we find the words we have italicised above and no doubt it was an inadvertence on the part of Mr. Maclachlan in retaining them if he considers Dakin v. Orley an authority for his subsequent proposition. For our part we consider that it was a mistake to retain the words, not by reason of Dakin v. Orley, but upon principle. Dakin v. Osley simply decided that an owner of cargo could not abandon to the shipowner and escape payment of freight when, by the neglect and want of skill of the master and crew the cargo was so damaged as to be of less value than the amount of the freight. We cannot see the vis consequentie in the proposition that because a shipowner can recover freight from an owner of goods who abandons to him, therefore on an abandonment to underwriters the shipowner can recover against them. But upon principle the liability of the underwriters where freight has been earned, and there has been an abandonment with salvage, seems to us incontestable, and as the American Judge Johnson in the case of Catlett v. The Columbian Insurance Company (12 Wheat. 383), says, "Baillie v. Moudigliani is no au.hority to the contrary, there having been no abandonment."

The judgments in the American cases exempting underwriters from liability under such circumstances rest entirely on Lord Mansfield's decision, and Mr. Justice Johnson, dissenting from the rest of the court in Catlett's case, is the only Judge who has examined the question scientifically. It may be noticed that a somewhat similar decision to that in Catlett's case was given by the Supreme Court of New York in Caze v. Baltimore Insurance Company (7 Cranch. 358), where the question was, whether the plaintiff's, being owners of both ship and cargo, were entitled to recover from the underwriters upon the cargo freight pro rate itineris. Justice Story said, "in the first place the court are satisfied that as between the insured and the underwriter on the cargo of a ship, the latter is in no case responsible for the payment of freight, whether there has been an abandonment or not. It is a charge on the cargo against which he does not undertake to indemnify the owner; and if authority be necessary to support the position, it is fully borne out by the doctrine of Lord Mansfield in Baillie v. Moudigliani.”

Now, Mr. Justice Johnson, with whom the great American writer Mr. Phillips agrees (sect. 1718), considered the liability of underwriters who take salvage on abandonment to pay freight earned on all fours with their liability for wages of the crew, which was sustained in Fotheringham v. Prince (Mass. Rep. 56). He remarked: The wages had been earned, the owners were compelled to pay them; the salvage was sufficient to pay them and in a suit against the underwriters the amount was recovered." The learned Judge makes some very cogent observations. “If,” he says, "the nuder. writer is entitled after abandonment to freight to be eamed by the ship, why should not the cargo in his hands remain liable for freight to be afterwards incurred? Liability in the one instance is the correlative of right in the other. It is altogether a mistake to call this charging the underwriter with the freight. The proposition affirmed is that the abandonment does not discharge the cargo from the licn for the freight to which it was subject in the hands of the insured. Even in the hands of the owner, this liability was not unlimited and unconditiona'."

As we have observed, Mr. Justice Johnson does not consider Baillie v. Mondiglioni any authority on the point under discussion. He remarks that the manuscript report is evidently only a skeleton of a very learned and correct opinion. But as a decision he said it did not touch Catlett's case, for there was no abandonment; the cargo was sold in France, with the benefit of pro ratâ freight, and the owners wished to charge the underwriters with the freight so paid as a loss incident to the capture. The question in the present case did not arise there, and could not arise in any case that does not comprise in it both the ingredients of the technical total loss and freight earned." He considers it only a charity to Lord Mansfield, or an act of justice to his learning, to assume that in using the words he did he "had in mind the only sense of those words in which it was possible that he could be correct, which was, that they could in no case raise a personal charge for freight against the underwriters where sufficient salvage to pay the freight had never come to their hands."

Observing that three propositions were affirmed in Caze's case, the first being "that under no circumstances can the insured throw the freight upon the underwriters even by abandonment,” Mr. Justice Johnson adds: "No one will pretend to maintain the affirmative as a general proposition. The principle is." he said, "that the owner cannot, by his abandonment, divest the lien which the shipowner has in the goods abandoned. That the underwriter takes the cargo cum onere--a rule which is held sacred even against hostile capture: (The Der Mohr, 3 C. Rob. 129; 4 b. 314.)

The law is that the master is not bound to part with his cargo, and fails in his duty if he does, until his freight is paid. Why should he be so bound any more in the case of the transfer by abandonment than in any other transfer? Upon the whole," he concludes, "I never was clearer in any opinion in my life that the decision now rendered against the allowance of freight in this adjustment is not to be sustained by either principle or authority." Mr. Phillips, as above stated, agrees with Mr. Justice Johnson, and after some most conclusive reasoning on the cases, says: "The better doctrine seems to be that on abandonment of the cargo, the salvage comes into the hands of the underwriter, subject to the charge of freight for the voyage that is covered by the policy." Considering that, opposed to this doctrine-supported as it is by a Judge in a lucid and convincing judgment, by Mr. Phillips, a writer of acknowledged pre-eminence; by the editor of Arnould, however lamely; and by every argument which equity and common sense can furnish-we have only a very unsatisfactory report of a judgment of Lord Mansfield, in a case where there was no abandonment, and two American cases, in which Mr. Justice Story blindly followed Lord Mansfield, there ought to be no hesitation in declaring the doctrine as stated by Mr. Phillips to be the sound and governing principle of marine insurance law.

GIFTS ΤΟ CONVENTS.

THE case of Cocks v. Manners (24 L. T. Rep. N. S. 869; L. Rep. 12 Eq. 574), recently decided by Vice-Chancellor Wickens, on the subject above proposed, unquestionably demands the very serious attention both of our legists and jurists. Two questions of importance were decided, after elaborate argument-First, that a bequest to a sisterhood of Roman Catholic women, the primary object of which was the personal sanctification of the members, who, as a means thereto, employed themselves in works of piety and charity, in teaching the poor and nursing the sick, was a charitable gift, and void, under the 9 Geo. 2, c. 36, so far as it comprised personalty savouring of the realty, but as to pure personalty was valid, and that an objection on the ground of perpetuity was not sustainable; secondly, that a bequest to a convent of Dominican nuns, living together in a state of celibacy, and under a common superior, for the purpose of sanctifying their own souls by prayer and pious contemplation within their institution, and without engaging in external works of mercy or charity, except casually or accidentally, was not a charitable gift within the statute, and was therefore valid both as to pure and impure personalty; the objection which had been taken on the ground of perpetuity being overruled. Assuming this to be the law, we can only say that the sooner it is altered the better. It is intolerable that of two monastic institutions, the one which superadds works of piety and charity to the monasticism pure and simple of the other, should on that account be regarded by the law with less favour. On a perusal of the case it will be observed that, although the property included in the testamentary appointments comprised freeholds as well as personalty, the validity or invalidity of the gift, quoad the freeholds, was hot and conid not be decided in the case (an administration suit by the executor). We think, however, there can be no doubt that it follows as a necessary inference that an actual devise to the convent, or to its superior for the time being in trust for the convent, must have been held equally valid. The gift to the convent was not void by the laws of mortmainbecause the subject of decision, as we have before said, only em braced personalty, and the convent was not a corporation. We agree with the Vice-Chancellor that the bequests both to the convent and sisterhood were not void as perpetuities, because (as in the case of private clubs) the members for the time being of the convent and sisterhood respectively had collectively the power of alienation. We also agree that, as to the impure personalty comprised in the bequest to the convent, the gift was not void under the 9 Geo. 2, c. 36, because it subserved no charitable purpose. We are, however, by no means convinced that a monastic institution, though it may be tolerated by law, is not so far opposed to public policy as to render invalid the contract under which it is constituted, and any gifts to the society, which of necessity must be administered in conformity with its constitution; and this point seems scarcely, if at all, to have been urged before the Vice-Chancellor. In every gift or trust to, or in favour of, such an institution, two points require consideration. First, whether the gift is of a nature sufficiently definite to be executed by the courts; and, secondly, whether it contravenes public policy.

In the first place we take it to be clear that in a gift to a convent, which is not bound to exercise any charitable functions, the members of the convent are intended to take benefits, not in their individual capacity, so as to create a joint tenancy between them, but only in accordance with the regulations of the society. It becomes therefore necessary in each case to see what these regulations are, and whether they prescribe, with sufficient accuracy for the guidance of a court of equity, the rights of the parties. In the absence of such accuracy, the gift must fail, for, inasmuch as it is not charitable, it cannot be executed cyprès. In the second place, as it seems to us, the court (whether the gift be charitable

or not) must inquire whether the regulations of the society, at all events so far as relates to its fundamental constitution or to essential particulars, are opposed to public policy. In regard to societies of males bound by religious or monastic vows, it can hardly be doubted that gifts to them would be invalid, for the 28th section of the 10 Geo. 4, c. 7 opens with a recital that, "Whereas Jesuits, and members of other religious orders, communities, or societies of the Church of Rome, bound by monastic or religious vows, are resident within the United Kingdom, and it is expedient to make provision for the gradual suppression and final prohibition of the same therein," and then follow divers stringent provisions in regard to the registration of such Jesuits and members, &c., including an enactment: "That in case any Jesuit or member of any such religious order, community, or society as aforesaid, shall, after the commencement of this Act within any part of the United Kingdom, admit any person to become a regular ecclesiastic, or brother, or member of any such religious order, community, or society, or be aiding or consenting thereto, or shall administer, or cause to be administered, or be aiding or assisting in the administering or taking any oath, yow, or engagement purporting or intended to bind the person taking the same to the rules, ordinances, or ceremonies of such religious order, community, or society, every person offending in the premises in England or Ireland shall be deemed guilty of a misdemeanor, and in Scotland shall be punished with fine and imprisonment;" and by sect. 34 any person admitted or becoming a Jesuit, or brother, or member of any other such religious order, community, or society as aforesaid, was to be deemed guilty of a misdemeanor, and being thereof lawfully convicted was to be sentenced to banishment from the United Kingdom for life. For some not very obvious reason the 38th section provided that the Act should not extend to affect any religious order, community, or establishment consisting of females bound by religious or monastic vows. From the toleration thus granted to these female societies, a toleration which only amounts to an exemption from the provisions of a severely penal statute, it however by no means follows that they and the contracts in virtue of which they exist, are not opposed to public policy. A monastic society whether of males or females, by its constitution and internal regulations would probably bind its members by conditions practically operating as a forfeiture of the property of any member who should marry. We say practically operate, in order to anticipate the objection that a religious vow, or such a rule of internal discipline, would have no legal validity. The same result (forfeiture) could in general be easily arrived at through the expulsion of the offending member either by the convent authorities or by a vote of the majority, and such expulsion would, by the very constitution of the society, be necessary to its continued existence. We think it fairly arguable that such societies, whether they provide for the forfeiture of the interest of offending members or not, are in their very essence societies in restraint of marriage, and that gifts in their favour (which the donor always intends shall be administered according to their internal rules) cannot be permitted by law. If this could be substantiated, then, in virtue of the favour shown by equity to charities, a distinction would arise between bequests to societies of female celibates such as the sisterhood which was, and the Dominican Convent which was not, bound to the performance of external works of charity. When charity was a paramount or necessary object of the institution, the court, while diregarding or modifying the objectionable machinery designed for its administration, would, as to pure personalty, establish the gift cy près, or, under the 23 & 24 Vict. c. 131, make an appointment in favour of the lawful part of it, while the non-charitable gift would fail altogether. We are not disposed to dogmatise on any question depending on rules of public policy, and certainly are not rash enough to do so where the breach of public policy involved is one the law on which is so confused, not to say chaotic, as that relating to restraints on marriage; we think, however, that the remarks we have ventured on, will induce our readers to suspend their judgment on the question whether a testamentary gift, either of realty or personalty, to a convent of females is valid or the reverse? The whole subject undoubtedly requires the careful attention of the Legislature.

INTERNATIONAL LAW AND THE ALGLO-AMERICAN ARBITRATION.-IV.

Is our last we pointed out the chief facts upon which the Alabama claims are based, and the general nature of the liabilities said to have been thereby brought upon this country. For the purpose of examining rather more minutely those liabilities we arrange them thus, viz., those, if any, arising

(1) From the trade carried on by private persons with the Confederates;

(2) From the existence of the Confederate agency at Liverpool;*

(3) From the building or fitting out of the Oreto, Georgia, and Sea King for the Confederate service;

(4) From building, &c., of the Alabama;

(5) From the national complicity in acts of ill-will towards the Northerners.

As to (1) trad: by private individuals, we have already shown

the limits within which this is legal and justifiable, and American tribunals have by their opinions, as promulgated in the case of the Santissima Trinidad, widened rather than narrowed those limits. On this part of our subject we must call the careful attention of our readers to the distinction which exists between a State, a supreme independent political power as a whole, and the separate members which collectively compose it. This distinction is all important, and especially so with reference to the present matter. International law has to do with States as such, with States as actual entities, having certain rights and obligations not well defined, more fittingly styled moral than legal, in regard to their neighbours. It is not concerned with the citizens themselves, save so far as their acts can be imputed to the whole community. It is evident then, from the principles which form the very foundation of International law, that the trade which the private members of a neutral choose to transact with those of a belligerent cannot compromise the national neutrality. It may be of the greatest service to such belligerent, indirectly supplying him with arms and elothing, with medicine and stores, it may expose the vessels to capture by the other belligerent, it may cause the latter serious annoyance, and even great danger, but it cannot afford him any recognised ground of complaint against the neutral government. Such trade, however, must be in truth what it pretends to be, with the people, not the government of the belligerent, and by the people, not the government, of the neutral. As long as these two conditions are satisfied, the neutral is safe, is infringing no international rule. The moment, however, either is broken, the neutrality is, or at least will probably be, broken. It will be so if the latter condition be violated, ipso facto by such violation, and war might justly be immediately declared by the injured party; it will be so if the former be violated to the knowledge or by the connivance of the neutral government, which of course represents the State itself. This being so, was the trade carried on by certain of our merchants with Southeners, carried on in reality with the protempore Confederate authorities? And if so, was this done with the knowledge of the British authorities? Both questions must be answered in the affirmative to charge this country; but if such answers be, on a careful examination of the facts returned, there is no possible ground on which we can relieve ourselves of liability. Some persons with perhaps excusableobliquity of reasoning, seeing the little scientific thought that has hitherto been devoted to this subject, argue that if Great Britain did all she could to prevent illegal trading by her subjects, she had discharged her international obligations and relieved herself from blame. They might as fairly say that a master is not responsible for the acts of his servant or for the worry of his mastiff, when he has warned such servant to behave properly, or has tied up said dog with a yard of tape. On this point, if any further argument be necessary, we will allow Mr. HAMILTON FISH to speak. Writing to Mr. MORLEY (Sept. 25, 1869), he says, in reference to the escape of the Oreto, &c.: Ample proofs of the wrong committed were submitted to the Queen's Government. Indeed, these wrongs were open, notorious, perpetrated in the face of day, the subject of debate and of boast even in the House of Commons. We

hold that the international duty of the Queen's Government in this respect was above and independent of the municipal laws of England. It was a sovereign duty attaching to Great Britain as a sovereign power. The municipal law was but a means of repressing or punishing individual wrongdoers; the law of nations was the true and proper rule of duty for the Government. If the municipal laws were defective, that was a domestic inconvenience of concern only to the local government, and for it to remedy or not by suitable legislation as it pleased. But no sovereign power can rightfully plead the defects of its own domestic penal statutes as justification or extenuation of an international wrong done to another sovereign power." This construction of international obligations is undoubtedly correct. It seems to us fair and equitable to all parties, but should any deem that it imposes undue burdens upon neutrals, we would remind them that whereas that body of rules, which forms the common law of the entire AngloSaxon race, holds the employer liable for the torts and even occa-sionally the crimes (Reg. v. Stephens, L. Rep. 1 Q. B. 702), of the employed, though done without his knowledge, and contrary to his general orders, yet the law of nations does not hold a community liable for the acts of its private members, however illegal internationally, unless those acts have been done with the knowledge of the Government. This qualification is so great, that to carry it farther would be equivalent to abandoning altogether the restriction upon neutral traffic. Many States have provided special and extraordinary means (Enlistment Acts and the like), in order to prevent their citizens from rendering assistance to belligerents, but with these measures international law is not con-cerned. They may be efficient-they may be powerless to accomplish their end, but under no circumstances can they relieve a neutral from his manifest duties. To set up the defective state of one's municipal law, is to betray ignorance of the most elemen-tary rules of pleading-it is to confess, though not to avoid.

As to (2) the Confederate agency, a question similar to those we have just 'discussed arises-Was its existence known to the British cabinet? If so, and the attempt was made unsuccessfully to repress it, this country was guilty of an international tort; but

if no such attempt was made, then the offence amounted to a crime against the law of nations-a crime for which, by that law, we are bound to pay the fullest compensation-and for which, too, the then ministers ought personally to be held answerable by this nation. That such an agency did exist is now established beyond cavil; that it existed with the knowledge of high officials of state, we are loath to believe. Such a connivance would exhaust in due reprobation even the ATTORNEY-GENERAL'S select vocabulary-it would have been cruel, wicked, cowardly, and stupid, dishonourable to statesmen, degrading to England, as inexcusable as the support given by American senators to the Fenian brotherhood. We are not in possession of sufficient materials from which to arrive at a conclusion as to our constructive complicity in the proceedings of Commander BULLOCK and his assistants; we only know that they watched over the growth of the Confederate navy such as it became in Great Britain, that they directed the blockade-running, that they exercised a general control over the other Confederate agents; but we trust that from connivance in this our Government was free. If not, we must bear the burthen of what their folly has brought on us.

Upon (3) we need make no further remarks. We stated last time the chief circumstances in connection with these vessels, and we are decidedly of opinion that considering those circumstances, and the rules of international law in accordance with which our liability is to be weighed, we are free from culpability, and therefore from liability.

We fear, however, that upon (4) the Alabama we must come to a different conclusion. There is first the question whether the Government was not under an international obligation to detain this vessel on the 21st July, on receipt from Mr. ADAMS of the sworn depositions as to her character. Her build, engines, general appearance, were most suspicious; the United States were in a terrible struggle; the detention for a few days could have caused no possible injury to Messrs. LAIRD, and it would have been an act of courtesy to a sister nation; Mr. ADAMS was most earnest. As to such a course being degrading, a submission to American threats-such language is absurd a great country cannot degrade itself by doing its manifest duty; and as to the interference with private rights, why if "No. 290" had had on board 10s. worth of articles that had not paid duty she would have been stopped a month till it had been paid. There were, of course, strong reasons against detaining "No. 290"-all Mr. ADAMS's similar representations had been carefully investigated and generally proved to have been utterly baseless; our shipping yards were ever engaged upon contracts with foreign Governments-we, therefore, will not presume to decide this question. But to what extent is our liability affected by the illness of Sir JOHN HARDING? Had he been in perfect health, his opinion would have been given in on the 26th July at latest, and the vessel would thereupon have been stopped-is not this country responsible for the results of his illness, viz., the escape three days later? What would be the decision at common law upon a plea put in by the defendant in case, to the effect that the damages sued for resulted from the illness of his servant, and the consequent inability of the latter to attend to his work, especially if the defendant added that he was personally aware of the circumstances from which the damage would probably arise, but took no precautionary measures? We see no reason for arriving at a different decision upon the same plea when put forward in an international dispute. There is, however, yet another question it is commonly reported, and is admitted by Captain SEMMES, that the Alabama put to sea in consequence of timely warning conveyed to her owners by British officials. If this were so, any defence we might have appears to us demolished. We may punish him who has thus betrayed his trust, but the punishment will not relieve us from the consequences of the breach of trust.

There is, lastly, the vague charge of "want of comity," or "national ill-will," towards the North, which the Americans allege we exhibited throughout the war. The charge has, very likely, a scintilla of truth in it; but we are unable to see how it can be imported into a law-suit. It is, too, put forward in a most indefinite form, and when formulated into distinct language it is exaggerated to the highest degree. In the celebrated despatch quoted above, Mr. FISH first complains of the QUEEN'S proclamation as evidence of our animosity; but that this was neither premature nor unnecessary we have already shown. Then, with wonderful volubility, he scatters accusations broadcast against Great Britain and its Government. He speaks of the many ships which were, either in England or in Scotland, with ostentatious publicity, being constructed to cruise against the United States.' The "many "which did so cruise were four, of which but one was especially fitted for war. He goes on: 66 The Queen's Government itself, with the omnipotent Parliament

66

66

suffered ship after ship to be constructed in its ports, to wage war on the United States," an assertion false as can be. He the says Confederates had no legal status on the sea, no open seaports," yet American, tribunals decided that their sailors were not pirates, and he immediately gives the lie to himself. "On the land it was, in like manner, the munitions of war and the wealth drawn by the insurgents from Great Britain, which enabled them to withstand year after year the armies of the United States." But, if the Confederates had no seaports, how did these munitions, &c., reach them ? Via Boston and New York, per Northern contractors? a route by the by not altogether improbable, judging from certain recent exposures of Northern morality.

We are perfectly willing to admit the liability of this country where there has been legal default, but we must emphatically repudiate the frantic, unreasoning, wholesale charge of insincerity and ill-will brought against us by American politicians and stump orators. The position of a neutral is ever difficult, and ours was so in no ordinary degree during the great civil war. With Lancashire starving, against the advice of France, against our own inclinations, we tried to do our international duty. We perhaps sometimes failed, if so we are ready to pay the penalty; but to say we wilfully failed is nothing more nor less than a deliberate lie. What, however, we did for the North is this, between the 1st May 1861 and 31st Dec. 1862, according to official custom house returns, we supplied them with 41,500 muskets, 341,000 rifles, 49,982,000 percussion caps, and 2250 swords, while, at least, onethird as much more reached them under the euphuistic designation of "hardware." Add the clothing, boots, medicines, money, and men which they obtained from us and ask which had the greater justification for complaint, North or South? Towards which was shown a want of comity?

The liability then, if any, of this country, will be that arising from the first four causes enumerated at the commencement of this article. To fix us with liability the Americans must fix our State authorities with knowledge, actual or constructive, of trade carried on directly or indirectly with the Confederate Government, of the existence of the agency, &c. They must also rebut the plea which our counsel will put in of "contributory negligence." Had their blockade been what it claimed to be, blockade running would scarcely have been attempted; had the United States commanders been up to their work the Florida would never have left Mobile nor the Alabama Fort de France in November 1862. Of course the only damages which can be claimed are those springing immediately or mediately from the national acts or misfeasance. The question of remoteness we treated last week, page 245, and to our remarks there we refer our readers.

LAW LIBRARY.

Precedents of Indictments. By THOMAS WILLIAM SAUNDERS, Esq., Barrister-at-Law, Recorder of Bath. London: LAW TIMES

Office.

MR. SAUNDERS says truly in his preface that every practitioner in the criminal courts has at times experienced the want of some portable and readily accessible collection of precedents to assist his own judgment when suddenly called upon, as is commonly the case, to prepare an indictment. True that a great number of skeleton forms are to be found in Archbold; but they are scattered about in various parts of a large volume devoted to other branches of the criminal law, and, therefore, troublesome to carry and tedious to discover. In Cox's Criminal Cases, many of the reports set out the indictments that were the subject of decision, and the appendices to the twelve portly volumes have gathered a great number of rare and valuable precedents; but these are a library in them. selves, which it would be impossible to carry to the places where the services of counsel are required. Seeing what were his own wants, it occurred to Mr. Saunders that if he were to gather together from the best authorities a collection of precedents of indictments in a small volume, which might be easily carried to the courts in the bag, it might be an acceptable contribution to the practical law library. The result is the little book before us. But, though small in bulk, it abounds in useful matter. A short introduction conveys some excellent instructions for the framing of indictments generally. The precedents are arranged conveniently under the headings of the various crimes, which are placed in alphabetical order, so that whatever is wanted can be readily found. If there have been decisions upon the forms of indictments in any cases, these are stated in a note to the precedent itself. A copious index is subjoined. Altogether, it is a book the most practically useful that has come under our notice for some time. It should be added that at the heading of each precedent it is stated if it is under statute or at common law, with reference to the title and

section of the former.