litigation, the result of which seems to be, that so long as a register of shareholders is kept substantially complying with the Act, it is a matter of perfect indifference whether the particular directions contained in the Act are complied with or not. It does not matter whether the book is called register of proprietors instead of register of shareholders, nor whether the names and additions of the shareholders are accurate, nor whether an alphabetical arrangement of their surnames is rigidly adhered to, nor whether the seal of the company has been affixed at the meeting specified by the Act, or at some other meeting. As to all these matters the Act is said to be directory only; but that phrase, as applied to the enactment in question, will be found to mean that it is wholly immaterial whether the minute directions referred to are complied with or not; and if it is immaterial whether certain forms should be adhered to or not, the legislature should not tie the public down to one form rather than to another; and, above all, the supreme power should not stultify itself by saying that certain things shall be done in a particular manner, and leave it optional with its subjects to do them in that or some other manner, as they may find most convenient.

I quite admit that it should be incumbent on companies to keep accounts and registers, and that the shareholders should have some clearly defined rights, whether they have expressly stipulated for them or not; and I am not prepared to deny the expediency of compelling companies to publish periodical statements of their affairs. But what I am desirous of pointing out is, that the Legislature ought to issue no commands which it is impossible to enforce, and the non-observance of which it is inexpedient to punish, and that this principle has not been kept in view in legislating for companies. The more minutely the sovereign power prescribes how things are to be done, the more it trammels its subjects; and when it attempts to lay down rules for carrying on ordinary business, it inevitably does much more harm than good. Such matters are wholly unfit for legislation; and, with a very few exceptions, I think it may be truly said, that every law requiring a

particular form to be observed in transacting the ordinary affairs of life, is neither more nor less than a public nuisance.

The mistake of descending too much into detail has been, to some extent, avoided in the Joint-Stock Companies Act of 1856, and the device there had recourse to, of appending to the Act a set of regulations which may be either adopted or not, is ingenious and useful. The regulations not being enacted by the Legislature, may be modified by every company as occasion may require; and as they have not the force, so neither have they the rigidity of rules set by the law-giving power. This is a considerable step in the right direction; but much yet remains to be done.

The foregoing observations, on the evil of descending too much into detail, apply nearly as forcibly to companies' deeds of settlement and regulations as to Acts of Parliament.

The remarks I have made upon the errors committed by the Legislature in dealing with companies, apply, it will be observed, to companies as going concerns. But, when we turn to what has been done to facilitate the dissolution and winding-up of companies unable to carry on their business, we shall find that even still greater mistakes have been made. Most persons who know anything of the practical working of the celebrated Winding-up Acts of 1848 and 1849, will agree in saying that they were productive of almost unmixed evil.

It was hoped that, by the Acts in question, a company of many shareholders might be dissolved and wound up as easily as a partnership of few members, allowance being of course made for increased difficulties, consequent on increased numbers of persons concerned. How these hopes have been disappointed; how shareholders, instead of being benefited by the Acts, have been ruined by the frightful expense consequent on their application, are matters which are unfortunately only too well known. To what is all this attributable? Mainly, I believe, to the commission of the three following errors, viz.-1. The error of allowing creditors to sue individual shareholders during the pendency of the winding-up proceedings; 2. The error of allowing the same company to be wound-up in bankruptcy, and also and at the same time

in chancery; and, 3. The error of intrusting the winding-up of companies to persons not sitting in public, and not interested in bringing the proceedings to a speedy termination. The two first of these errors have, however, been recently corrected, and the evil arising from the third has been considerably mitigated; and since creditors have been restrained from levying execution against the members of their debtor companies which are being wound up, and since official managers have been brought more under the direct control of the equity judges, the evils before complained of have been greatly diminished. In the practical working of the Winding-up Acts, there is, however, still great room for improvement.

It is not, however, my intention to attempt to lay before the Society any scheme for amending the law: my object has been simply to draw attention to a few important principles which the statutes, relating to companies, have violated; and if I have succeeded in tracing the past and present unsatisfactory state of the law to the causes which have produced it, I shall at least have done something to further the objects of the Society.

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XXIII. IS THE GOVERNMENT OF THE UNITED STATES OF AMERICA ENTITLED, UNDER THE ASHBURTON TREATY, TO CLAIM THE EXTRADITION OF THE FUGITIVE ANDERSON? BY THE HON, GEORGE DENMAN, Q.C., M.P.

[Read 4th February, 1861.]

I CONCEIVE that, among the high objects which the founders and supporters of this Society have proposed to themselves, none is more useful or more noble than that of constantly endeavouring to check the tendency of legal minds to be too easily contented with decisions based upon a narrow construction of words, or a hasty adoption of apparent precedents in cases which demand for their due discussion and solution a resort to lofty principles, and a large and liberal interpretation, whether of statutes or of common law.

Cases have from time to time arisen in which this tendency has worked serious injustice; and a repetition of such cases has, in more than one instance, permanently damaged the character of the law itself. Even judges are sometimes apt to forget that if there be two courses equally open to them, equally consistent with precedents, equally consonant to the ordinary interpretation of language, it is not only their right but their duty to prefer that which is also consonant to the principles of humanity and natural justice, and to reject that which would work cruelty or wrong; and that in such cases they are the guardians of the common law from the encroachments of its most dangerous enemies. I believe I might go further and say, that there have been occasions on which lawyers of eminence have been led to give their voice in favour of a decision which they felt to be harsh or unjust, from the false conclusion that, by allowing themselves to be influenced by their sense of justice and humanity, they would run a greater risk of violating the law; as though the law, because it operates harshly in some cases, were therefore founded on harshness and injustice, and as though, cæteris paribus, it preferred wrong to right.

I have more than once heard the expression, "hard cases make bad law," cited on the bench and at the bar, as though this were almost a subject for rejoicing rather than a truth to be deplored.

A case has lately arisen, second in importance to none that has ever agitated the minds of Englishmen-than which none has ever more loudly called upon English jurists to be satisfied with no solution but that which shall be able to appeal to unambiguous enactments, to indisputable precedents, to irresistible analogies, or, in default of these, to those eternal principles of natural justice, and to that reverence for freedom under the law, which alone have enabled our great English jurists to lay down law worthy of the name, when arguments have ended in doubt, and when precedents have wholly failed. And yet I grieve to say, that even in such a case the tendency I have referred to has to some extent prevailed. It has in some quarters been hastily assumed, that because a decision was revolting to all our better feelings, it was therefore so much the more and not so much the less probable, that the judges so deciding were deciding according to law.

This, as it appears to me, is just such a case as it falls within the province and the privilege of this Society to discuss; and I beg your indulgence while I endeavour to bring it before

you.

I take my statement of the facts from reports and notices in the public press, of the accuracy of which there appears to be no doubt, as they all substantially agree.

John Anderson was a slave in Missouri, one of the United States a state in which a slave, escaping from slavery, is liable to be apprehended by any one who chooses to seize him, and so prevent his escape; and if the slave should resist his apprehension to the death, and in so doing chance to kill his assailant, he is by the law of Missouri guilty of murder. Anderson escaped from his master. One Digges, assisted by four slaves of his own, pursued Anderson with the intention of apprehending him as a fugitive slave, and taking him before a magistrate, in order that he might be restored to his master. After a long pursuit, Digges crossed a fence with a stick in his hand