21 THE JURIST. LONDON, JULY 21, 1866. of the continuance of a man's life; but the judges of the Queen's Bench considered that there were others where the same implication was made as to the continued existence of a thing, and hence drew the conclusion, that the defendants were not liable to be sued for the failure to allow to the plaintiffs the use of the music hall on the agreed nights. It will be useful to compare the decisions given in the two above-mentioned cases with what has been thought to be well ascertained law in the case of a lease. In Woodfall's Landlord and Tenant, 354, ed. 1863, it is said, that where a lessee covenants generally to pay rent, he is bound to pay it, though the house be burnt down; and in The Brecknock Company v. Pritchard (6 T. R. 750), it is laid down by one of the counsel, that the rule is, that when the law creates a duty, and the party is disabled to perform it without any default in him, and he has no remedy over, the law will excuse him; but when the party, by his own contract, creates a duty or charge upon himself, he is bound to make it good if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. This doctrine is stated by Lord Kenyon, C. J., to be correct; but the former portion of it seems hardly consistent with the old rule of law, as to the liability of a person on whose premises a fire had occurred without any default on his part, for damage occasioned to another person by the spreading of the fire. In Roll. Ab., B. 2, it is said, "If a fire light suddenly in my house, I knowing nothing of it, and burn my goods, and also the house of my neighbour, my neighbour shall have an action on the case against me;" in such a case the law imposed on a person a duty (sic utere tuo ut alienum non loedas), which an accident disabled him from performing; but nevertheless he was held liable. The law is now altered by the 6 Ann. c. 31, and 14 Geo. 3, c. 7, s. 86. (See Gale on Easements, 239). The latter part of the doctrine, of which Lord Kenyon, C. J., approved, does not seem to agree with Appleby v. Meyers and Taylor v. Caldwell; for if it were correct, it would seem to be a necessary conclusion, that in the former case the plaintiffs would have been bound to do again the works destroyed by the fire, and complete the contract, before they could recover anything; and that in the latter case the defendants would be liable, as they were bound unconditionally to allow the plaintiffs the use of the music hall. A CASE has been recently decided in the Court of Common Pleas, which illustrates the rule of law applicable to cases where a person has been prevented from doing, by inevitable accident, that which he has undertaken to do. The material facts in Appleby v. Meyers (12 Jur., N. S., part 1, p. 500) appear to have been as follows:-The plaintiffs had entered into a contract to perform certain works on the defendant's premises, and had been engaged in carrying it out; but before the completion an accidental fire broke out on the defendant's premises, which entirely destroyed what the plaintiffs had erected thereon. The premises were occupied by the defendant, and entirely under his control, the plaintiffs having access thereto only for the purpose of performing their contract. The question was, whether the plaintiffs were entitled to recover the whole, or any portion, of the contract price. The Court took time to consider their judgment, which was delivered by Smith, J. It was laid down, that the whole of the contract price could not be recovered, for that was payable only on an event which had not happend-the completion of the works, but that the value of the work done could be recovered. It was stated in the course of the judgment, that when a man contracts to do a thing, he is bound to do it, or make compensation, notwithstanding he is prevented by inevitable accident; and the defendant was held liable on an implied promise to provide and keep up the premises in a state fit for the plaintiffs to work thereon. The case of Taylor v. Caldwell (32 L. J., Q. B., 164) was mentioned and distinguished. In that case, there had been a contract, that the defendants should allow the plaintiffs to give four concerts on four different days at the Surrey Gardens and Music Hall; before any one of the concerts was given, the music hall was burnt down. The plaintiffs having brought an action to recover damages for the defendants not allowing them to have the use of the music hall, the judges of the Court of Queen's Bench held that it could not be maintained; and that by a fire which occurred through the default of neither party, both parties were excused from liability to perform the terms of the contract. Allusion was made in the judgment to the class of contracts in which a person It is of frequent occurrence to insert in a lease a binds himself to do something which requires to be clause exempting the tenant from payment of rent if performed by him in person, such as promises to the house be burnt down. (See Davidson's Precemarry, or to serve for a certain time; and it was stated dents in Conveyancing, vol. 5, pp. 181, 455, note, ed. that it had very early determined, that if the per- 1861, and Prideaux's Precedents in Conveyancing, formance of a contract is personal, the executors are vol. 2, pp. 7, 39, ed. 1866.) It appears to have been not liable. A passage from Williams on Executors at one time thought that equity would relieve the was cited with approval, to the effect, that if an author lessee if sued at law for the rent agreed to be paid for undertakes to compose a work, and dies before com- premises burnt down during the lessee's occupation. pleting it, his executors are discharged from this con- In Baker v. Holtzopffell (4 Taunt. 45) the plaintiff had tract; for the undertaking is merely personal in its obtained a verdict for rent claimed for premises which nature, and by the intervention of the contractor's had been consumed by fire. The action was for use death has become impossible to be performed. The and occupation, and it was contended, on motion to above were instances where an implied condition exists set aside the verdict, that since the buildings were not law, properly so called. For it is pointed expressly at certain commissions of martial law, which it recites had been issued; and it prayed that "no commissions of like nature should be issued," to be executed as afore capable of being occupied, the plaintiff must fail. | tition of Right has anything at all to do with martial The Court refused to grant a rule, on the ground that the land was still in existence on which the defendant might rebuild, and that the landlord, if he entered for that purpose, would be a trespasser, and that there was no offer on the defendant's part to deliver up posses-said; so that on the face of it it is limited to commission. In Holtzopffell v. Baker (18 Ves. 115) it was held by Lord Eldon, L. C., that the lessee had no remedy in equity. sions of martial law of a particular character. The very term "commissions" points to something quite different from martial law in time of war or rebellion, which is, by force of the existence of the war, or the declaration of martial law, and not by commission. And there is an allusion to certain commissions which had missions under your Majesty's Great Seal, have issued forth, by which certain persons have been appointed Commissioners, with power to proceed within the land, according to the justice of martial law, against such Again: in The Brecknock Company v. Pritchard the liability of a person who has contracted to keep a bridge in repair came into question. The declaration alleged that the defendants undertook to keep in complete re-been lately issued, for it recites, "that of late divers compair a bridge for seven years, but had failed to perform their contract. The plea alleged that the bridge had been washed away by the act of God, that is, by a great unusual and extraordinary flood of water, such as the bridge could not be reasonably expected to re-dissolute persons as should commit any murder, robsist. This was held bad. But the principle of this case falls far short of the extent which it is necessary to go in order to support Appleby v. Myers. It seems reasonable enough to hold, that the defendant's contract was, in effect, one insuring that the bridge should be in repair during the whole of the time specified; but Appleby v. Myers presented many diffi-tial; when if by the laws of the land they had deserved culties, and, as the Court said, was a case as to which no decision directly in point could be cited. LEGAL AND CONSTITUTIONAL HISTORY.- IT has been remarked by some great legal writer, that no one can be a good lawyer who has not a competent knowledge of the history of law. This has been just illustrated in a remarkable manner by an article in the Saturday Review, on the subject of Martial Law, which bears internal evidence of having been written by a member of the Profession, but is pervaded by a fundamental error, obviously arising from an unacquaintance with the legal history of the subject. bery, felony, mutiny, or other outrage or misdemeanour whatsoever; and by such summary course and order as is agreeable to martial law, and as is used by armies in time of war, to proceed to the trial and condemnation of such offenders, and cause them to be executed and put to death according to the law mar death, they might and ought by those laws to have been even judged and executed.... which commissions and all others of like nature are wholly contrary to the laws of the realm." Now this, it is manifest, is not directed against martial law in time of war (which it rather recognises and affirms), but to its assumption and exercise, by means of commissions over ordinary offenders, in times when they could have been proceeded against by the ordinary laws of the land. What was this, but the declaration of the common law, by which, as Lord Coke had already laid it down, it is murder to execute a man by martial law in time of peace? The Petition itself says so, in effect, for it asserts that the commissions it denounces were wholly contrary to law; whereas martial law in time of war, it distinctly recognises. And Hale, writing after the Petition of Right, mentions martial law in time of war as a suspension of the common law. It would have been impossible to fall into such an error if the writer had referred to legal history to see what the commissions were which are denounced in the Petition of Right. Writers so well known as Hume and Hallam describe them, and they are alluded to by Mr. Finlason in his book. Thus, Mr. Hallam says, "No other measure of Elizabeth's reign can be compared, in point of violence and illegality, to a commission whereby, upon no other allegation than that there has been of late 'sundry unlawful assemblies in riotous sort,' for the suppression The article is upon Mr. Finlason's book on Martial Law, which maintains the legality of martial law in times of rebellion—a legality which has been distinctly affirmed by the Secretary of State, on the advice of the law officers of the Crown. The object of the article is to displace this view, by shewing that the Petition of Right abolished martial law, whereas, as Mr. Finlason maintains, it applies only in time of peace, and within the realm. The latter point it does not appear is disputed, nor could it be, since the Petition is expressly and in terms limited to the realm. As, how-of which it was found necessary to have some notable ever, it is not expressly and in terms limited to time of peace, the Saturday Review maintains that it is not so limited. Now to begin with, there is surely a blunder in referring to the Petition of Right rather than to the Bill of Right, by which it was finally enacted into law, and which is expressly limited to time of peace. This surely is the legislative construc-"commissions" described in the Petition of Right, and tion on the Petition of Right. But, in the next place, there is an obvious blunder in supposing that the Pe rebellious persons to be speedily put to death, according to the system of martial law"-the Commissioner was authorised "to cause to be executed upon the gallows notorious offenders." And Mr. Hallam mentions similar commissions issued by Charles I. (1 Const. Hist. 389). Now, this exactly answers to the was "wholly contrary to law." For it was a commission to execute ordinary offenders in ordinary times July 21, THE JURIST. lason's book, as well as in the work itself; and know- by martial law; whereas it is manifest that martial | mands the sacrifice of the legal rights of a few. There law can only be lawful in time of war, and in the may be circumstances that not only justify, but comactual presence of war, in a district in a state of war, pel, the temporary abandonment of constitutional as Mr. Finlason maintains in his book, only justifying forms. It has been usual for all Governments, during the proclamation of martial law in a district in a state an actual rebellion, to proclaim martial law, or the of armed rebellion, and a rebellion not only amount- suspension of civil jurisdiction." (1 Const. Hist. Eng. ing to war against the Crown, but a rebellion too for- 240). Now, this cannot refer merely to the action of midable to be repressed, except by martial law; all the military in aid of the civil power in the suppreswhich the writer in the Saturday Review ignores, and sion of actual riot or outrage, as on the occasion of the represents him as maintaining, that on account of war Lord George Gordon riots. For that, as Lord Mansat a distance, martial law might be proclaimed at home; field declared, is not martial law at all, nor is it "the whereas he is very particular in pointing out, that suspension of court jurisdiction," as Mr. Hallam dethere must be a dangerous and formidable rebellion scribes martial law to be; for it is in aid of the civil in the district declared under martial law. This is jurisdiction, and is by force of the common law itself, not very creditable to the candour of the writer; any as Lord Chief Justice Tindal declared, in the case of more than his representing Mr. Finlason as "mis- the Bristol riots; whence it is that prisoners must be quoting" the Petition of Right (which he sets out ac- given to the civil power, and be tried and disposed of curately at p. 11), because elsewhere he states its effect by the civil courts. Whereas, as the Petition of Right to be, according to his construction of it, to be limited recognises, under martial law, properly so called, prito time of peace. This is wretched work, however, to soners may be tried and " executed" by "the summary expose such misrepresentations; what is more impor- justice of martial law." The writer in the Saturday tant is, to point out the importance of legal history. Review must have been well aware of all these authoAnd to recur to our history-Hume and Hallam men-rities, for they are cited in the Preface to Mr. Fintion commissions of martial law issued by Charles I in time of peace, exactly in the same terms as those of Elizabeth, already alluded to; and he distinctly mentions these as the commissions alluded to in the Petition of Right. (1 Const. Hist. 389). Then, he states, "A commission was issued 1625, empowering the Commissioner to proceed against soldiers or other dissolute persons, who should commit any robberies, &c., by such summary course as is agreeable to martial law." (1 Const. Hist. of Eng. 389). And he mentions another similar commission in the next year. Now, the Petition of Right was in 1628, two years afterwards; and it recites, "that commissions have of late been issued by your Majesty." What can be more clear than that these were the "commissions alluded to?" And what were they "but commissions of martial law in time of peace" for the trial of ordinary offenders? It is such commissions of martial law (not martial law in time of war or rebellion) which the Petition of Right declares illegal. And accordingly, the Bill of Right, by which the Petition of Right was finally and formally enacted into law, puts this construction upon it, and declares, that no man can be put to death in time of peace within the realm, except by the laws of the land —a recital repeated in every Mutiny Act since the revolution. And the Legislature has repeatedly in our own times affirmed the legality of martial law in time of rebellion. Thus it was in the 43 Geo. 3, and thus it was in the act of Will. 4, to which Mr. Finlason refers; and to none of which, by the bye, does the Saturday Review refer: another instance of candour in a public The writer must surely have known of them, writer. as he must have known of the passages above cited from Mr. Hallam, and of the passage in which that great writer distinctly declares the legality of martial law in time of rebellion; that is, of martial law as described in the Petition of Right, involving the summary trial and execution of prisoners, according to the "There may, indeed, be times justice of martial law. of pressing danger, when the conservation of all de In the Ceylon case the late Sir R. Peel was at first disposed to adopt that view; but when referred to the The Saturday Statute Book, which had clearly put the contrary construction upon it, expressly reserving to the Crown the power of declaring martial law in time of rebellion, articles on the subject, but had not the same candour. he frankly acknowledged his error. Review had fallen into the same error in its earlier On that occasion Mr. Stuart Wortley, the late Recorder, put the question on its true basis, when he said to the Judge Advocate-General, "In short, the proclamation of martial law is the declaration of a Advocate-General was, "Precisely so." And that view was adopted and adhered to by the Crown then, and state of war." To which the answer of the Judge For the Secretary of has been just formally adopted and declared by the Crown in the Jamaica case. State, in his despatch, confirming the Commissioners' done under orders during martial law-the very proReport, declared, upon the advice of the law officers of the Crown, that no indemnity was required for acts position maintained by Mr. Finlason. To this, again, the Saturday Review makes no allusion, and leaves it to be supposed that the whole subject of martial law is obsolete, and that it has never been exhumed since Saturday Review that the subject is one of great imthe time of the Commonwealth. Agreeing with the portance, we wish that it had been discussed in its pages with more candour, and more justice to its readers. SIR FREDERIC POLLOCK. IT is hardly probable that the retirement of Sir journal. The length to which his career has been Frederic Pollock should pass without notice in a legal protracted would of itself be most remarkable; and he belonged to an order of men of whom the last are now leaving the bench. Whatever may be the cause, men of the same high calibre of intellect and mental 1 character do not now appear in the ranks of the common-law branch of the profession; as the very mention of such names as Lyndhurst, Brougham, Scarlett, Coleridge, Wilde, Follett, and Pollock will remind us. When Dr. Lushington, likewise, shall have resigned, the last of this illustrions race will have passed away from the bench; and if they are to have any successor in the future, it will be, so far as we can see, in the person of the son of one of the most distinguished of them. Mr. Pollock's career at the bar commenced in association with such men as Scarlett and Brougham, and not long since the writer heard him mention that Brougham was his junior in the profession, and had appeared as junior to him. He also mentioned how proud he was when he first gained a verdict against Scarlett. This carries us back more than half a century ago; in fact, one might almost say ""Tis sixty years since." There were giants in those days-giants in intellect; and Mr. Pollock was among them. He had an intellect of the highest order; he had won the highest honours at the university; he came to the bar, as so many then did, with an intellect at once keen and highly cultivated; and it was soon exercised severely in constant contest with some of the most powerful advocates that have ever adorned the bar. He soon rose to the first-rate practice, and some years ago his late clerk, Mr. Coleman, shewed the writer and others of the bar, the Liverpool cause list for some year nearly half a century ago, in which every special jury cause was marked as one in which Mr. Pollock was retained on one side or the other. In the Law Reports of the first quarter of the present century the name of Mr. Pollock also constantly appears opposed to those of Campbell-the late Lord Campbellor Parke-the present Lord Wensleydale. More than a quarter of a century has elapsed since he was Attorney-General, with Sir William Follett as SolicitorGeneral. Probably no minister ever had two such powerful law officers as Sir R. Peel, and very proud he was of them both, paying them on all occasions the most marked respect, and relying on them with implicit confidence. Either from his intellect not being so facile as his colleague's (though it was more powerful), or from his eloquence being more forensic than parliamentary in its character, Sir Frederic Pollock did not make such a brilliant figure in debate as his coadjutor, and the honours of parliamentary oratory were won by Sir William Follett. There was, however, a manly dignity about Sir Frederic Pollock which, whenever he addressed the House, always secured its respectful attention; and he left his name attached to more than one measure of useful and sensible legislation. His forensic eloquence was singularly impressive, from its union of dignity with earnestness. His style was marked by more dignity of delivery than any other man at the bar. He gained great verdicts; and one case occurs to the recollection of the writer-an action for malicious prosecution which was tried before Lord Abinger, and in which Pollock was for the plaintiff, and Follett for the defendant; and in which, after a splendid forensic struggle, the powerful reply of Sir Frederic Pollock gained a verdict for the enormous sum of 30001. The style of Sir Frederic was marked by such dignity, that it was, perhaps, more judicial than forensic; and there probably never was a man whose style and manner were more fitted for the chief seat on a judicial bench. There was a commanding power in his intellect, and an imposing dignity in his voice, and manner, and utterance, which, joined to his vast experience, gave him immense influence upon the bench, either with his brethren or the bar, and, it may be added, gave him prodigious influence with a jury. It has been remarked that no judge ever had such influence with a jury; and his summing up, in cases in which he took an interest, and desired to influence the verdict, were certainly consummate specimens of judicial skill. As illustrations of this, may be mentioned his summing up in the case of Hatch v. Lewis, and in the case of The Alexandra. Both these cases were towards the close of his career, and were marked by as much power as a judge could possibly display. He was Chief Baron for more than twenty years, and he retained his mental vigour to the last, although at the time of his retirement his age was not less than eighty-two. He was rather proud of this, as well he might be, and was wont to say that he was the oldest judge who had ever sat on the English bench. "Lord Mansfield (he would add) retired at the age of eighty." There was not the slightest decay or decline in his mental faculties, although, no doubt, there was physical weakness which rendered his retirement, though not necessary, wise and judicious. It is more pleasant to retire while one's faculties are yet unaffected than to wait until they shew symptoms of decay. And, certainly, no man might more readily retire, or find greater pleasure in his retirement. Sir Frederic Pollock, like Littledale and Coleridge, had always found his recreation in the exercise of those fine faculties of mind which had been so richly cultivated and so richly exercised; and to the last he retained his keen relish for intellectual enjoyment. His recreations, indeed, were of a rather severe order, consisting chiefly of exercises in mathematics. He added to these severe pursuits, however, others of a lighter order: he was much attached to art; and to one art in particular, photography, he was greatly addicted. The photographers, proud of their illustrious associate, made him president of the Photographic Society, and, we believe, Sir Frederic still holds the office. To a mind like his, leisure can never want employment, and well-earned retirement must be unalloyed enjoyment. In his case, also, it has peculiar claims, owing to the large scope of his family circle, and the unusual attractions of his domestic life. If there was one distinction of his great age of which Sir Frederic Pollock was more proud than of his undimmed faculties, it was his patriarchal happiness as the head of a family. He has been heard to say that he had sixty-five direct descendants. "Have you any great grandchildren," asked a friend. "Any?" exclaimed the old Chief Baron, "Why, I have five already, and hope to have more." It is not every one to whom it is given to see his children's children; but to live to see the fourth generation is a happiness which falls to few. And of his gratitude for this great happiness Sir Frederic Pollock made no secret. If (as in Scripture seems to be implied), to see one's descendants to the third and fourth generation is the greatest test of earthly blessedness, then Sir Frederic Pollock's life must have been blessed, indeed. To such a man, with the memory of such a life, and the recollections of such a career, with the possession of such mental faculties, and the society of such a family-to such a man, retirement surely can bring nothing but repose and enjoyment; and long may he live to enjoy it. July 21, 1866," THE JURIST. Justice the Master of the Rolls should become a Lord Justice, another Vice-Chancellor being appointed. The Master of the Rolls was one of the highest functionaries in the Court of Chancery, and yet an appeal now lay from his judgments to the Lords Justices, who were individually of lower rank. That seemed to him to be an anomaly which it was desirable to remove, while it would incidentally have the advantage of saving the country 1000l. a year-the difference between the salaries of the Lords Justices and of the Master of the Rolls on the one hand, and of a Vice-Chancellor on the other. The Lord Chancellor could not acquiesce in the bill, the effect of which would be to abolish the office of Master of the Rolls in all but the name. The only reason given for the measure was, that it was an anomaly that an appeal should be made from the Master of the Rolls to functionaries of inferior rank. But this must have been foreseen by the Legislature when the Court of the Lords Justices was created; and it was evidently a mere matter of sentiment, and one of quite insufficient importance to become the basis of legislation. If the change contemplated by the bill took place, there would be the greatest difficulty in providing for the employment of the present staff of the Master of the Rolls, because many of their offices would become mere sinecures. He understood that the present Master of the Rolls was opposed to the bill, and under these circumstances he trusted that the second reading would not be pressed. Lord St. Leonards, in opposing the bill, observed, that the principle upon which it was founded seemed to be, that an appeal from the Master of the Rolls was an appeal from a superior to an inferior tribunal. But such was not the case, for such an appeal was intended to be an appeal to the Lord Chancellor and the two Lords Justices. The intention originally was, that the Lord Chancellor should preside more frequently in the court than had been the custom of late. Lord Romilly stated, that when the noble and learned Lord who lately sat upon the woolsack consulted him with regard to the bill, his answer was, that he placed himself entirely in his hands, and would give his assent to it if he thought it desirable. Some time after the noble and learned Lord sent him a copy of the bill; and upon carefully considering it, he thought it would so seriously affect the ancient functions exercised by the Master of the Rolls, and cause so much complication, that he suggested to the noble and learned Lord whether it would not be better to withdraw the measure. Lord Kingsdown understood the object of the bill was to Lord Cranworth said his view was, that the Master of the bill. Bill withdrawn accordingly. STATUTE LAW REVISION BILL. After some observations from Lord Teynham in condemnation of it, The motion was agreed to, and the bill passed. Tuesday, July 17. PUBLIC COMPANIES BILL. The Earl of Nelson proposed the second reading of this bill, the object of which was to enable shareholders of public by proxies. The evil of the present system was, that as proxcompanies to vote by voting papers as well as personally and ies were obliged to be filed at the offices of the company fortya perfect knowledge of their own strength and of that of their eight hours before a meeting, and the directors thus acquired opponents, they were enabled to draw up their report and shape their course accordingly. Lord Redesdale thought the appropriate remedy for the The Duke of Buckingham said that the bill would not On the order of the day for going into committee on this Lord Cranworth opposed the bill as a piece of petty and unnecessary legislation. If a person kept a savage dog, without due precaution, he could, as the law now stood, be made they should go into committee that day three months. liable for any damage the animal did. He would move that The Marquis of Clanricarde thought that the owner of a dog should, under all circumstances, be made liable for any injury which was done by the animal. The bill had obtained The House then divided, when there werethe unanimous assent of the House of Commons, and he For going into committee trusted that their Lordships would not reject it. Against.. Majority The bill was therefore rejected. 14 37 -23 Mr. Walpole said he proposed proceeding with this bill on SALE OF LAND BY AUCTION BILL AND REFORMATORY Mr. K. Hugessen asked the Home Secretary whether he intended to proceed with these bills. Mr. Walpole said he intended to move that the order of the day relating to the Sale of Land by Auction Bill be discharged, but that he would proceed with the other bills if possible that night. SALE AND PURCHASE OF SHARES BILL. JUDICIAL COMMITTEE OF THE PRIVY COUNCIL BILL. The bill was then withdrawn. Friday, July 13. CARRIAGE AND DEPOSIT OF DANGEROUS GOODS BILL. LAW OF CAPITAL PUNISHMENT AMENDMENT BILL. The Attorney General said the hon. member would not be of the subject and the length of the bill, when he heard that surprised, knowing as he did the magnitude and importance it was not the intention of the Government to proceed with the bill during the present session. At the same time her Majesty's Government considered it to be one of the most pressing measures to which their attention could be directed, possible moment next session. and they hoped to be able to introduce a bill at the earliest RAILWAYS CLAUSES BILL. This bill was withdrawn. |