1 old Dutch court known as "The Worshipful Court of Schouts, Burgomasters, and Schepens," which had been in existence from the year 1653. The existence of a single tribunal, although under different names, for a period of 243 years, is almost unique in the history of the United States. Some of the mayors, under the English Colonial Government, were men of prominence, but it was not until fifty years after the revolutionary war that the law required that the presiding judge of the court should be a lawyer. In the colonial days the "Mayor's Court" had both civil and criminal jurisdiction and, for a part of the time, executive and legislative duties as well. The criminal jurisdiction was afterwards transferred to the Court of General Sessions and the civil jurisdiction passed to the Court of Common Pleas, and that now merges into the Supreme Court, which becomes the only high court of original jurisdiction in the State. THE selection of RUFUS W. PECKHAM, a judge of the New York Court of Appeals, for the vacancy in the Supreme Court of the United States, caused by the death of Justice JACKSON, was received with universal approval. Some of President CLEVELAND'S nominations to the Supreme Court have not obtained the favour of the Bar, while in other cases he has shown judgment which accords with that of the members of the Profession. Judge PECKHAM was the senior Democratic judge of the highest court of the State of New York, and his promotion to the United States Supreme Court was an act of justice in consideration of his long services, his absolute fairness, and his distinguished ability. Judge PECKHAM's father, who bore the same name, was also a judge of the New York Court of Appeals, and was lost in the Ville de Havre disaster. The younger Judge PECKHAM is distinguished for a peculiarly judicial temperament. has shown independence on some occasions when the court has divided on political lines. His opinions are written with great literary ability, and form an interesting part of the judicial literature of the State. Judge PECKHAM's appointment was satisfactory to the various political factions of President CLEVELAND's party, and gives a representation to New York State in the highest court of the land. New York has always been represented in the United States Supreme Court since the early days of the Republic until the unfortunate factional difficulties in the Democratic party prevented the confirmation of two lawyers nominated for the Supreme Court vacancy two years ago. Judge PECKHAM'S nomination does not change the political complexion of the Supreme Court. BLACKBURN. A NAME to hold in honour! England owes As to the sturdy oak the sapling grows, As glimmering morn becomes the perfect day, Great Prince of Interrupters-(how long now Your hasty speech was but the upward flow From wells of learning. Ne'er was yours the rôle Of empty vapouring in the public eye On themes not legal. Your high-soaring soul Sought Duty's path, wherever it might lie. Neither the platform's nor the Senate's heat Distracted you, or warped your equal view Of all mankind. Thus, on the printed sheet, Colleagued by Cockburn, Bramwell, Brett, are you Enshrined in judgments of both grit and core, Which must survive till law shall be no more. Second Sheet. He FROM THE BENCH TO THE CABINET. THE career of Sir Thomas Upington, K.C.M.G., who was on Saturday last appointed for the third time Attorney-General of the Cape of Good Hope-a Cabinet office in the Colonial Ministry has features of exceptional interest and novelty in professional circles. Sir Thomas Upington was called to the Irish Bar in 1867, and in 1869 became private secretary to the late Lord O'Hogan when Lord Chancellor of Ireland. He emigrated to the Cape in 1871, and within seven years was appointed Attorney-General, a post which he held from from 1878 till 1881, with a seat in the Colonial Cabinet. He returned to office three years after his resignation as Premier and Attorney-General, and, resigning the Premiership in 1886, continued in the Cabinet as Attorney-General till 1891, when he went into Opposition. In 1893, when in Opposition, he was offered, and accepted, a puisne judgeship in the Supreme Court-a position which seems a somewhat strange fall in dignity for an ex-Prime Minister. There are, however, precedents in Colonial Governments of the acceptance of puisne judgeships by gentlemen who had been Cabinet Ministers. Thus Mr. Justice Richmond, of the New Zealand Bench, who died last July, had at one time held, in the New Zealand Cabinet, the post of Native Minister -an office second in importance to the Premiership alone. So, too, Mr. Mackenzie, when Prime Minister of Canada, had appointed Mr. Fournier, then Minister of Justice, to a puisne judgeship, and this precedent was followed several times during the Premiership of Sir John Macdonald. There is, however, no precedent, so far as we are aware, for the recent proceeding, whereby Sir Thomas Upington literally steps down from the Judicial Bench to re-enter the political arena as Attorney-General and Cabinet Minister. In this country, in comparatively recent times, two Lord Chief Justices, Mansfield and Ellenborough, were members of a Cabinet; they retained, however, their judicial positions while Cabinet Ministers, and the anomaly of the course adopted was the subject of severe comment. So, too, Sir Edward Sugden (Lord St. Leonards) sat in the House of Commons, on vacating for the first time the Lord Chancellorship of Ireland, from 1835 till 1841, as member for Ripon. Lord St. Leonards, however, vacated a judicial position, held only during the life of the Ministry, on the resignation of that Ministry. He did not resign a judicial office for a political appointment. So, too, Mr. Abercromby (Lord Dunfermline), as an ex-Chief Baron of Scotland, returned to political life and became Speaker of the House of Commons. His judicial office was, however, abolished by statute. In early times there are instances of persons who had held high judicial positions on the English Bench taking part in politics. Thus Sir Edward Coke, as an ex-Chief Justice, moved the Petition of Right in the House of Commons. He had, however, been dismissed from the Bench. He did not leave the Bench voluntarily for the purpose of accepting a judicial appointment. On the whole, the step taken by Sir Gordon Sprigg, the Premier, in approaching a member of the Judicial Bench with an offer of a political appointment, and its acceptance by Sir Thomas Upington, are in themselves highly anomalous and create a precedent which it would be highly dangerous and unconstitutional to follow. INTERNATIONAL LAW. INTERNATIONAL law is that collection of rules, customary, conventional, and judicial, which are accepted as binding inter se by the nations of the world, or, at any rate, the civilised nations of the world. At present this science is very imperfectly understood; many of its rules are uncertain and ambiguous, and are very often interpreted in the most opposite senses. International law regards the States of the world as being either in a state of war or in a state of peace. It lays down rules to be observed in the mutual dealings of nations which are at peace with each other and of nations which are at war with each other, and it determines the rights and duties of belligerent and neutral nations. But the rules of international law which relate to war are more voluminous and certain than those which govern nations in time of peace. International law, as a whole, is capable of being very differently interpreted according to the point of view from which it is regarded, and its rules vary infinitely in point of certainty and acceptance. By some jurists it is considered improper to speak of these rules as laws; they are merely moral principles, as they are destitute of the sanctioning force which is the distinguishing quality of law. Whilst other jurists derive its principles from some transcendental source, such as nature, the Divine will, reason, &c., and these do not hesitate to attribute to its rules an intrinsic authority over all the nations of the world. According to this theory the usage of nations is evidence of, but not the origin of the law. It merely expresses the consent of nations to things which are naturally, that is, by the law of God, binding upon them. There is, however, no legislative or judicial authority recognised by all the nations of the world that regulates the reciprocal relations of States, and consequently no express laws, except those which result from the conventions which States may make with one another; so that, however long-established or useful any or all of these rules may be, there is but one real remedy for their infraction, and that remedy is the sword. Public opinion may be, and often is, appealed to with considerable force, in cases of violation of international morality, yet such appeal is not always attended with success, and at the best it affords but a precarious defence against the acts of powerful nations. The foundation, therefore, upon which international law rests is the consent of nations. This science was first called by Zouch (professor of Oxford), in his "Jus Feciale, 1650," "Jus inter Gentes." Its common English appellation formerly was the Law of Nations, but since Bentham led the way it has been termed International Law. 66 What then are the principles of justice which ought to regulate the mutual relations of nations and states, or, in other words, what are the fountains of international jurisprudence, dijudicationum fontes," as Grotius expresses it? What are the authorities to which reference must be made for the settlement of disputes arising upon their construction or their application to particular instances? Grotius enumerates these sources as being "ipsa natura, leges divinæ, mores et pacta." Positive international law does not make its appearance until the days of Grotius, although usages of international intercourse must at all times have existed. International law, as we know it, is substantially the creation of civilised Europe during the last 300 years. The great nations of antiquity which have contributed most to the civilisation of modern Europe have given least to this branch of civilisation. The Jus Feciale of the earlier Roman Law regulating the formal intercourse between Rome and other nations, is, indeed, the germ of what might have been a system of pure International Law; but the rise of the Roman Republic to the mastery of the world rendered a jus inter gentes unnecessary and impossible. Notwithstanding the perfection to which law cultivated as a science, and practised as an art attained, a perfection that had resulted in its "having become the national guide to future ages," and notwithstanding the large debt which the jurisprudence of nearly every country of Europe owes to the Roman Law, it may with safety be asserted that the jurisprudence of ancient Rome is not the source from which modern International Law sprung. But, nevertheless, the principles of natural justice in international relations, however imperfectly executed, and though never reduced to a system, were not unknown to the Romans. ius gentium of the Romans must not be confounded with modern International Law, for it was merely another name for the law of Nature, or a fictitious system which served as a foundation for a new set of equitable as opposed to old common law regulations. The The law of nations remained in the rudest and most uncultivated state down to the period of the sixteenth century. Mr. Ward, in his "History of the Law of Nations (vol. 1, pp. 322-328), enumerates five institutions existing about the period of the eleventh century, which made a deep impression upon Europe, and contributed in a very essential degree to improve the law of nations. These institutions were the feudal system, the concurrence of Europe in one form of religious worship and government, the establishment of chivalry, the negotiations and treaties forming the conventional law of Europe, and the settlement of a scale of political rank and precedency. The spirit of chivalry encouraged high sentiments of honour and fidelity, and gave a moral sanction to the observance of treaties, and rendered fraud and unfair advantage over a rival unworthy of the true knight; it threw a lustre over the defence of the weak and unprotected, and it cultivated humane feelings towards each other among the rulers of society. Chivalry introduced declarations of war by heralds; it dictated humane treatment to the vanquished, and courtesy to enemies. The spirit of Christianity also, which, indeed, was at work in the origination of chivalry itself, did much to facilitate intercourse among men of a common faith; it stopped, so far as it could, private wars; it opposed the barbarity of selling Christians as slaves, and introduced a somewhat milder treatment of captives taken in war, and it lent its sanction to all moral obligations. The influence of Christianity was very efficient towards the introduction of a better and more enlightened sense of right and justice among the Governments of Europe. The history of Europe, during the early periods of modern history, contains many cases to show the authority of the Church over turbulent princes and fierce warriors, checking violence, and introducing a system of morals which inculcated peace, moderation, and justice. The government of the Church by a monarch, who gradually gained great political power, the presence in Europe of an ultimate interpreter in questions relating to religion and morals, no doubt did a great amount of good as well as a great amount of harm. All important questions of politics had some sort of bearing on religion, which could bring them up for examination and settlement before the Roman Pontiff, and the very vagueness of the theory of papal interference aided its success on favourable occasions. In the disputes of kings, the weaker party often appealed to the Pope, and thus gave him an opportunity to arbitrate or command. The influence of treaties, conventions, and commercial associations helped greatly to form the modern code of public law. The rights of commerce began to be regarded as under the protection of the law of nations, and Queen Elizabeth complained of the Spaniards that they had prohibited commerce in the Indian Seas contrary to the law of nations. Efforts were made upon the revival of commerce to suppress piracy and protect shipwrecked property. Pillage had become an inveterate moral pestilence. Papal bulls and the excommunication of the Church were not powerful enough to put an end to these evils. The revival of commerce, and, with it, a sense of the value of order, and conventions, and treaties between sovereigns, contributed gradually to suppress this criminal practice by rendering the regulations on the subject a part of the law of nations. But it was reserved, says Valin, to the ordinances of Louis XIV. to finally extinguish this species of piracy, by declaring that shipwrecked persons and property were placed under the special protection of the Crown, and the punishment of death, without hope of pardon, was pronounced against the guilty. The custom of admitting resident ambassadors at each sovereign's court was another important improvement in the security and facility of international intercourse, and this led to the settling of a question which was very frequently discussed in the fifteenth and sixteenth centuries concerning the inviolability of ambassadors. It came at last to be definitely decided that ambassadors were exempted from all local jurisdiction, civil and criminal, though Lord Coke considered that the law in his day was, that if an ambassador committed any crime which was contra jus gentium, he lost his privilege and dignity as an ambassador, being punishable as any other private alien, and that he was even bound to answer civilly for his contracts that were good jure gentium, but for anything malum prohibitum, and not malum in se jure gentium, he was not bound (4 Inst. 153). Such was the law of nations when Grotius lived (A.D. 1625). It was in a state of great disorder, and its principles were little known, and less observed. It consisted of a series of undigested precedents, without order or authority. The work of Grotius, "De Jure Belli et Pacis," published in 1624, definitely laid down the foundation of the science of international law, and his work was shaped in imitation of the institutional treatises of Roman Law. There had been earlier workers in the same field. Among these were Francis de Victoria. (of Salamanca), Saurez, Ayala, and Albericus Gentilis, all of whom flourished in the sixteenth century. Among the jurists who followed Grotius, the classical names are those of Puffendorf, Wolff, Vattel, and Bynkershoek. In England, Sir Leoline Jenkins and Lord Stowell are the most illustrious of those who have made important contributions to international law. In America, Wheaton stands at the head of a school of distinguished jurists, and his "Elements of International Law" is the standard modern treatise on the subject. The object of Grotius was to correct the false theories and pernicious maxims which then existed, by showing a community of sentiment among the wise and learned of all nations and ages in favour of the natural law of morality. He also endeavoured to show that justice is of perpetual obligation and essential to the well-being of every society, and that the great commonwealth of nations stood in need of law, the observance of faith, and the practice of justice. His idea was to digest in one systematic code the principles of public right, and to supply authorities for almost every case in the conduct of nations; thus he had the honour of reducing the law of nations to a system, and of producing a work which has been resorted to as the standard of authority in every succeeding age. He is therefore justly entitled to be called the father of the law of nations. It appears that the leading objects of Grotius and of his disciples and successors were (1) To lay down those rules of justice which would be binding on men living in a social state, independently of any positive laws of human institution, or, in other words, living together in a state of nature; and (2) to apply those rules, under the name of Natural Law, to the mutual relations of separate communities living in a similar state with respect to each other. Grotius endeavours to show that there is a law audible in the voice of conscience, enjoining some actions and forbidding others, according to their respective suitableness or repugnance to the sociable nature of men. "Natural law," says Grotius, "is the dictate of right reason pronouncing that there is in some actions a moral obligation, and in the other actions a moral deformity, arising from their respective suitableness or repugnance to the rational and social nature, and that consequently such actions are either forbidden or enjoined by God, the author of nature. Actions which are the subject of this exertion of reason are, in themselves, lawful or unlawful; and are therefore, as such, necessarily commanded or prohibited by God:" (Grot. de Jur., Bel. ac Pac., lib. i., cap. 1, sects. 1, 2.) As independent communities acknowledge no common superior, they may be considered as living in a state of nature with respect to each other; and the obvious inference drawn by the disciples and successors of Grotius was, that the disputes arising among those independent communities must be determined by what they call the law of nature. This gave rise to a new and separate branch of this science called the law of nations, jus gentium or jus inter gentes. The law of nations, jus inter gentes, must not be confounded with the jus gentium of the Romans, nor must international law be confounded with the natural law, or, as it has been variously called, jus naturale, lex naturalis, and lex naturæ. Grotius distinguished the law of nations from the natural law by the different nature of its origin and obligation, which he attributed to the general consent of nations. In the introduction to his work, De Jure Belliac Pacis he says: "I have used in favour of this law the testimony of philosophers, historians, poets, and even of orators; not that they are to be indiscriminately relied on as impartial authority, since they often bend to the prejudices of their respective sects, the nature of their argument, or the interest of their cause, but because, where many minds of different ages and countries concur in the same sentiment, it must be referred to some general cause. In the subject now in question this cause must be either a just deduction from the principles of natural justice or universal consent. The first discovers to us the natural law, the second the law of nations. If a certain maxim, which cannot be fairly inferred from admitted principles, is, nevertheless, found to be everywhere observed, there is reason to conclude that it derives its origin from positive institutions." The principles of international morality as distinguished from international law are to be obtained not by applying to nations the rules which ought to govern the conduct of individuals, but by ascertaining what are the rules of international conduct which, on the whole, best promote the general happiness of mankind. The jurists of the school of Puffendorf regarded the science of international law as a branch of the science of ethics. They had considered it as the natural law of individuals applied to regulate the conduct of independent societies of men, called States. Since the days of Grotius, the code of war has been greatly enlarged and improved, its rights better defined, and its severities greatly mitigated. The rights of maritime capture, and the duties and privileges of neutrals, have grown into very important titles in the system of international law. We now appeal to more accurate, more authentic, and more precise evidence of the rules of public law by a reference to the decisions of those tribunals to whom, in every country, the administration of that branch of jurisprudence is specially intrusted. The following are the various sources of international law : 1. Text writers of authority, showing what is the approved usage of nations. 2. Treaties of peace, alliance, and commerce, declaring, modifying, or defining the pre-existing international law. 3. Ordinances of particular States, prescribing rules for the conduct of their commissioned cruisers and prize tribunals. 4. The adjudications of international tribunals, such as boards of arbitration and courts of prize. 5. Another depository of international law is to be found in the written opinions of official jurists, given confidentially to their own Governments. The archives of the department of foreign affairs of every country contain a collection of such documents, the publication of which would form a valuable addition to the existing materials of international law. 6. The history of the wars, negotiations, treaties of peace, and other transactions relating to the public intercourse of nations. The study of this branch of jurisprudence cannot be valued too highly, for without a wide and accurate knowledge of that great system of legal rules, which in the course of many hundreds of years has been gradually built up for the determining of the rights and duties of States, we are incapable of properly understanding the history of modern Europe. NEGLIGENCE IN THE SALE OF POISON. THE case of Harrop v. Wyley and others, tried at tho recent Birmingham Assizes before Mr. Justice Day and a special jury, deserves notice, as being, as far as the reports show, the only action of its kind which has up to now been tried in this country. It was brought by a widow against Messrs. Wyley, who are wholesale and manufacturing chemists, and Mr. Brown, who is a retail chemist, to recover damages for the death of her husband from poison. The late Mr. Harrop, a business man, about fifty years of age and in good general health, purchased at the shop of Mr. Brown a dose of phenaticene as a cure for headache. Within an hour of taking it he was dead, poisoned by strychnine. The dose was served out of a bottle supplied to Mr. Brown by Messrs. Wyley, ordered as and labelled "phenaticene," which is a harmless and non-poisonous drug. analysed after Mr. Harrop's death, it was found that the contents of the bottle consisted of phenaticene mixed with about 30 per cent. of strychnine. Mr. Brown had ordered at the same time from Messrs. Wyley a bottle of strychnine for making up vermin killer; part of the contents of the bottle supplied in accordance with this order, and duly labelled strychnine" and "poison," were unused, and on being analysed were found to consist of phenaticene only. The contents of the two bottles had therefore somehow become mixed, but how was not very clear. A coroner's inquest had, of course, been held on Mr. Harrop, and at it both Mr. Brown and the assistants employed by Messrs. Wyley had given evidence to exculpate themselves respectively. 66 On being The action, as brought against Messrs. Wyley, was framed in tort only, and was brought by the widow as executrix claiming damages under Lord Campbell's Act for the death of her husband. As he was a man making a good income by his work, the damages so claimed were, of course, large. Against Mr. Brown, the retailer, the action was framed in contract as well as in tort. The measure of damages under the two forms of action was, however, very different. For the breach of contract to supply phenaticene as ordered, it was admitted that only such damages as had resulted to Mr. Harrop's estate could be claimed by his executrix. Such damage, in fact, only could He was have amounted to a few pounds. In order to support a claim under Lord Campbell's Act some wrongful act, neglect, or default must be shown, and this the plaintiff was not in a position to do against the retail chemist. Although nominally a defendant, Mr. Brown was called as a witness the principal witness for the plaintiff, and narrated very clearly and precisely what he had done with the drugs he received. closely cross-examined on behalf of Messrs. Wyley, with the object of suggesting that the unfortunate mixing of the poison with the phenaticene might be due to some carelessness of himself or his assistants; but the attempt so to shift the responsibility on to him failed. The death from strychnine poisoning was admitted, and there was a strong prima facie case that the poison was sent out by the wholesale chemists in a wrongly labelled bottle. At the close of the plaintiff's case the action was settled by Messrs. Wyley offering a substantial sum for damages and costs, which offer was accepted. The further argument of questions of some nicety was thereby avoided, and the final decision of the legal consequences of carelessness on the part of persons in the position of the principal defendants was postponed to some future date. Decisions of our courts have in various cases fixed responsibility on persons who, without any personal culpability, have placed things in themselves dangerous in such a position that third persons have in consequence sustained injury. The only case, apart from contract between the plaintiff and defendants, in which the dispenser of a mischievous drug has been held responsible for injuries thereby caused to a person not the purchaser, is the well-known case of George v. Skivington (21 L. T. Rep. 495; L. Rep. 5 Ex. 1), where damages were recovered for the injurious effects on the plaintiff's wife of a hair wash sold to him. There, however, though the wife was not a party to the contract, the preparation was sold for her use to the defendant's knowledge, and so the Court of Exchequer held that he was liable for the injury she sustained owing to his want of skill and care, without discussing other grounds at all. In the recent case at Birmingham, the deceased man was in no sense in the contemplation of Messrs. Wyley when they supplied their customer with the bottle which contained the poison. For a precedent for this action we must go to the United States. In 1852 a very similar case was decided by the Court ..of Appeal in New York, and damages were awarded to an individual against a firm of wholesale chemists who had sent out to a customer of theirs the poison belladona, labelled so as to appear innocuous, in consequence of which the plaintiff got a dose of the belladonna by mistake, and was severely injured. This case, Thomas v. Winchester (6 N. Y. Appeals), was decided on the ground that injury to some one was the natural consequence of the issue of a poisonous drug wrongly labelledwhether by sale, or otherwise, made no difference in the opinion of the court-and consequently that the person injured was entitled to maintain an action against the persons who caused the injury. If the case of Harrop v. Wyley had not been settled, the Court of Appeal here, and possibly the House of Lords, might have had to determine whether Thomas v. Winchester is to be considered good law. Sir Frederick Pollock, in his book on Torts, cites it with approval; and the fact that the doctrine there laid down has been instrumental in securing the payment of substantial damages, stamps that approval with the sanction of success. Accidents, such as caused the death of Mr. Harrop, are fortunately rare. It may be long before a similar action comes into court. PRIVATE COMMISSION. Commissions sometimes cover a multitude of sins.-LORD ESHER. EVEN that boor, that clownish uneducated card Brown of whoso virtues Mr. W. S. Gilbert so humorously sings Tho' an ass in all his deeds, He'd learnt the meaning of commission. We do not think that means he was acquainted with the law on the subject; he looked at the matter from a different standpoint. The moral to the lawyer is, not to lose sight either of the law or the current of contemporary opinion on such a subject. The legal principle is, that an agent cannot be allowed to put himself in a position in which his duty to his principal and his private interest are in conflict. Every thinking person will agree that this is a very reasonable and proper rule, and not too strong for the necessary protection of a principal. It is obvious that, if an agent make out of any transaction, without the full knowledge of his principal, a profit other than the remuneration agreed between him and his principal, this principle is infringed. Accordingly, the courts (1) will not assist the agent to recover such a profit; (2) will, if he receive it, compel him to account for it to his principal; and (3) will hold the other party liable to his principal for any sum of which the latter has been defrauded. That may be above the conventional morality of mercantile life, but that is no reason why so salutary a rule should be overlooked as if it were to all intents and purposes antiquated and superannuated. Take the case of Harrington v. The Victoria Graving Dock Company (39 L. T. Rep. 120; 3 Q. B. Div. 548). An engineer to a railway company is promised by another company a commission, the consideration for which, is partly the superintendence of their work and partly the use of his influence to obtain an acceptance of their tender by the railway company. It is a corrupt agreement, and, in accordance with the maxim ex turpi causâ non oritur actio is clearly unenforceable at law; and this whatever the actual effect produced on the mind of the engineer may be. It is quite immaterial whether the railway company are, in fact, damaged. The full meaning of the second proposition will become more apparent if we select a few examples. The master of a ship in a foreign port who, by reason of the state of exchange, receives a premium for a bill drawn upon England on account of the ship, although there may be an usage for the masters of ships to appropriate such premiums to their own use (Diplock v. Blackburn, 3 Camp. 43); the army agent and contractor who is employed to purchase an outfit, and is allowed discounts by the tradesmen of whom it is purchased in accordance with an alleged universal practice, of which the principal has no actual knowledge (Turnbull v. Garden, 38 L. J. 331, Ch.); the shareholder who represents to an intending buyer he can procure some shares at a certain price, and, being an agent of the buyer, transfers his own shares at an advance on the price he gave (Kimber v. Barber, 27 L. T. Rep. 526; L. Rep. 8 Ch. App. 56); the shipbroker who receives from the broker of the other party a portion of the latter broker's remuneration (Morison v. Thompson, 30 L. T. Rep. 869; L. Rep. 9 Q. B. 480); the agent to purchase coal who receives a part of the price (The Mayor of Salford v. Lever, 63 L. T. Rep. 658; (1891) 1 Q. B. 168)- each of these is bound to account for the secret commission, premium, discount, difference in price, portion of remuneration or price, to his principal or employer, or, if there be "no account remaining to be taken and adjusted between him and his employer, to pay over the amount as money absolutely belonging to his employer : (Morison v. Thompson, ubi sup.) And we conceive it would make no difference if the commission were called by any euphemistic name, or took the shape of a piece of plate or a present; nor if the transaction were intended to be a bribe, or did or did not operate as such on the mind of the receiver. Yet there is a class of case by no means unusual which some may consider should be classified as an exception to this rule, but where in fact some of the elements are different. It is well described by Lord Justice Mellish, a definition cited with approval by Lord Justice James, a judge who had the subject much before him; "If a person employ another who he knows carries on a large business to do certain work for him as his agent with other persons, and does not choose to ask him what his charge will be, and, in fact, knows that he will be remunerated not by him but by the other persons-which is very common in mercantile business-and does not choose to take the trouble of inquiring what the amount is, he must allow the ordinary amount that agents are in the habit of charging." See the Great Western Insurance Company v. Cunliffe (31 L. T. Rep. 661; L. Rep. 9 Ch. App. 525); Baring v. Stanton, (3 Ch. Div. 502). To support the third proposition we need only cite the case of the Mayor of Salford v. Lever (ubi sup.), in which the Court of Appeal affirmed the judgment of the Queen's Bench Division. Indeed, the other party is liable, although he may have parted with the money to his confederate. It would be affectation to suppose that the law and a large body of mercantile usage are not variant on this subject. It is, we believe, incontestable that a large number of business and professional men, who are in fact agents, accept and appropriate secret commissions and presents, without seeing any harm themselves, or being considered by others otherwise than righteous and entitled to despise others. Indeed, we understand that quite recently a plaintiff in the Queen's Bench Division said that it was well known in his trade and in many other trades that it was absolutely necessary for travellers to give commissions to, and to make payments for refreshments for, foremen and others in order to secure custom. If a traveller were not prepared to spend money freely, he might rely upon it that he would not get any orders. He further said that it was well known that life insurance policies had been given by traders to managers of firms in order to secure the work. Meanwhile, the law takes up and seeks to enforce a higher standard. The great Chief Justice in the second decade of the present century (Lord Ellenborough) declared that, if a certain usage of secret commission prevailed, "it was an usage of fraud and plunder "; the successor in that exalted office in the last decade (Lord Russell of Killowen) is said to have told a jury that, if it were the common practice for agents to appropriate secret commissions, then there was all the more reason to say that it was bad and dishonest and one which ought to be stamped out. And, when they consider how even a participation in the customary profits of the other party may all too unconsciously ensnare many an agent from the path of rectitude, and warp his judgment and independence, while, at the same time, it tends to keep up the amount of those profits, the most zealous advocates of judicial legislation to bring old law into tune with modern business ideas may be found to hope that, in this case, law may prove stronger than usage; to approve of the judges still maintaining before the public and enforcing the high standard; and to deprecate any hasty compromise to popular ill-considered sentiments. XXXVI. " WHERE TO FIND YOUR LAW. By ERNEST A. JELF, Barrister-at-Law. THE LAW RELATING TO INTOXICATING LIQUORS. EDUCATION, which we discussed last week, is one of the many devices of the State founded upon the principle that "prevention is better than cure. Of course, it is better to prevent offences than to cure them. The English law concerning intoxicating liquors rests, for the most part, пpon the same foundation. The chief body of law upon this subject-(though, of course, there are other important questions, such as those relating to the Excise) is that which defines the restriction to be placed upon the sale of intoxicating liquors. The matter is a very serious one, as must be admitted on all hands. Legislators of every school have recognised the importance of it. Not only have the drastic reformers, or would-be reformers, of the world, from Mohammed to Sir Wilfred Lawson, insisted from time to time, often with frenzied extravagance, upon the theme, but even those easy-going politicians, who are the most opposite extreme to all that is radical and visionary, have been stirred to enthusiasm on this account. The statesman is yet to be born who can slay this many-headed monster, which is responsible for so much crime and poverty, and so much villainy of every sort, and who can do so without interfering-(and this is the difficulty of the problem, which is supreme)—with reasonable individual liberty. Meanwhile, much has been done already, though exactly what, it will ever and again be a very hard matter to discover. The machinery by which it has been attempted to keep in check this "fons et origo mali," is ever being tinkered at and improved, or apparently improved. The result is to increase the obstructions of the law-finder to an abnormal extent. The most important statutes relating to this matter are: 6 Geo. 4, c. 81 (the Excise Licences Act 1825); 9 Geo. 4, c. 61 (the Licensing Act 1828); 1 Will. 4, c. 64 (the Beerhouse Act 1830); 4 & 5 Will. 4, c. 75 (as to the grant of an excise licence by an excise officer); 4 & 5 Will. 4, c. 85 (the Beerhouse Act 1834); 5 & 6 Will. 4, c. 39 (the Theatre Excise Licence Act 1835); 3 & 4 Vict. c. 61 (the Beerhouse Act 1840); 5 & 6 Vict. c. 44 (an Act for the transfer of licences and regulation of public-houses); 23 & 24 Vict. c. 27 (the Refreshment Houses Act 1860); 24 & 25 Vict. c. 21 (the Revenue (No. 1) Act 1861); 24 & 25 Vict. c. 91 (the Revenue (No. 2) Act 1861); 25 & 26 Vict. c. 22 (the Revenue Act 1862); 25 & 26 Vict. c. 38 (an Act to amend the law relating to the sale of spirits); 26 & 27 Vict. c. 33 (the Revenue Act 1863); 27 & 28 Vict. c. 18 (the Revenue (No. 1) Act 1864); 30 & 31 Vict. c. 90 (the Revenue Act 1867); 32 & 33 Vict. c. 27 (the Wine and Beerhouse Act 1869); 33 & 34 Vict. c. 111 (the Beerhouse Act 1870); 35 & 36 Vict. c. 94 (the important Licensing Act 1872); 37 & 38 Vict. c. 49 (the also important Licensing Act 1874); 42 & 43 Vict. c. 19 (the Habitual Drunkards Act 1879); 43 Vict. c. 6 (the Beer Dealers' Retail Licences Act 1880); 43 & 44 Vict. c. 20 (the Inland Revenue Act 1880); 43 & 44 Vict. c. 24 (the Spirits Act 1880); 44 & 45 Vict. c. 61 (the Sunday Closing (Wales) Act 1881); 45 & 46 Vict. c. 34 (the Beer Dealers' Retail Licences (Amendment) Act 1882); 46 & 47 Vict. c. 31 (the Payment of Wages in Public Houses Prohibition Act 1883); 47 & 48 Vict. c. 29 (the Licensing (Evidence) Act 1884); 48 & 49 Vict. c. 51 (the Customs and Inland Revenue Act 1885); 49 & 50 Vict. c. 56 (the Intoxicating Liquors (Sale to Children) Act 1886); and 51 & 52 Vict. c. 19 (the Inebriates Act 1885, amending the Habitual Drunkards Act 1879). The great mass of the case law which has to do with intoxicating liquors is merely explanatory of the above-named statutes, and for this we will merely refer the reader to the below-mentioned treatises. There is, however, a not inconsiderable body of cases deciding various points of legal principle with regard to matters more or less closely connected with the subject of intoxicating liquors. The first instance of such cases which we shall mention is R. v. Cruse and Mary, his Wife (8 C. & P. at p. 546), where Mr. Justice Patteson lays it down that, although drunkenness is no excuse for any crime whatever, yet it is often of very great importance in cases where it is a question of intention." (Cf. pages 32 and 33 of Hale's "History of the Pleas of the Crown," of which a new edition by Emlyn and Wilson was printed for Payne, Gardner, Otridge, Brookes, and Rider; Butterworth; Clarke and Son; Pheney, Cuttrell, Walker; Bagster and Bickerstaff, in 1800.) Next to this we should mention the series of rather important cases which have been decided, upon contracts made with drunkards. Among these is Gore v. Gibson (13 M. & W. 623, and cf. 5 L. T. Rep. O. S. 574), where the leading cases on this subject are collected. In that case a plea by the indorser of a bill that "he was at the time of the indorsement of the bill so intoxicated, and thereby so entirely deprived of sense, understanding, and the use of his reason, as to be unable to comprehend the meaning, nature, or effect of the indorsement, or to contract thereby, of which the plaintiff at the time of the indorsement had notice," was held a good answer to an action on the bill. On the same subject refer also to Pett v. Smith (3 Campbell, 33), Fenton v. Holloway (1 Stark, 126), and Hamilton v. Grainger (5 H. & N. 40; 1 L. T. Rep. 12). But see besides these the case of Matthews v. Baxter (28 L. T. Rep. 169), which shows that a contract made by a man in such a state of drunkenness as aforesaid is voidable only and not absolutely void; he may ratify it, therefore, when he is sober. As to the position of a bona fide holder for value of a bill of exchange or promissory note obtained from a drunkard, see Sentance v. Poole (3 C. & P. 1) and the specific performance case of Shaw v. Thackray (22 L. T. Rep. O. S. 115). Among the text-books, in which it has been attempted to reduce the enactments of the various statutes to some sort of order, are Paterson's "The Intoxicating Liquor Licensing Acts 1872-1874, together with all the Alehouse, Beerhouse, Refreshment-house, Wine and Beerhouse, Inland Revenue, and Sunday Closing Acts relating thereto, with Introduction, Notes, and Index" (10th edit., Shaw and Sons, 1894); Whiteley and Low's Licensing Laws, with Introduction and Explanatory Notes" (new edition, Knight and Co., 1888); and the painstaking work of Lely and Foulkes on "The Licensing Acts 1828, 1869, and 1872-1874, containing the Law of the Sale of Liquors by Retail and the Management of Licensed Houses, with Notes to the Acts, a Summary of the Law, and an Appendix of Forms" (3rd edit., Sweet and Sons and Stevens and Sons, 1887). See also the little "Handy Book on the Law of Innkeepers and the Licensing Acts," by Thos. W. Haycroft (Effingham Wilson and Co., 1892). It may also be useful on occasion to refer to Oke's "Licensing Laws" (2nd edit., by W. Cunningham Glen, published by Butterworths, 1874). See also, on questions of procedure under the Licensing Acts, Oke's "Magisterial Synopsis" (14th edit., same publishers, 1893), where the questions arising are arranged in a convenient form. For the general law of the Excise, see Bell and Dwelly's "Law of Excise; being a Collection of the existing Statutes relating to the Revenue of Excise, with practical Notes and an Appendix of select Cases" (Maxwell and Son, 1873). The whole of the subject which we have to-day been discussing is well summed up in Stephen's "New Commentaries on the Laws of England, partly founded on Blackstone" (11th edit., Butterworths, 1890), in vol. iii., book iv., part iii., chap. 12. This chapter, beginning on p. 200, deals with "Laws relating to Houses of Public Reception and Entertainment." THE WINDING-UP OF COMPANIES AND THE WE extract the following from the Report by the Inspector-General in The bearing of the criminal law on the question of balance-sheets which are deliberately calculated to mislead creditors, as well as on that of false statements as to a company's capital, and other frauds in connection with the formation of companies, would also appear to require some consideration. The provisions of the criminal law in regard to companies are to be found partly in the Larceny Act and partly in the Companies Acts, and are partly drawn from the common law. But whether, owing to defects in the law itself, or in the system of inquiring into the facts and enforcing the law, a consideration of the practices disclosed in connection with the companies wound-up compulsorily, and of the small number of cases in which successful prosecutions have been possible, appears to lead to the inevitable conclusion that there is a large amount of practical fraud in connection both with the formation and management of companies, which is not at present reached by the criminal law, and against which, at the same time, no provisions as to civil liabilities are likely to have any material effect. It may be pointed out in this connection that the special provisions of the Larceny Act are only aimed at "directors, public officers, and managers of companies," and that they do not affect the actions of promoters or vendors; and although the provisions relating to the obtaining of money by false pretences are no doubt equally applicable to the obtaining of moneys by companies as well as by individuals, the peculiar constitution of a company, and the division of responsibility in regard to its formation and management, appear to render the application of these provisions extremely difficult and uncertain. False statements may be issued by persons connected with the company in entire ignorance of their true character, while the person who instigates and profits by them neither "makes nor issues" them. Again, as has been already pointed out, statements which are calculated to mislead, and which have in practice the effect of misleading, may be circulated in such a manner as to reach the members of the trading community with a large measure of impunity, because it is impossible to prove that they were issued to particular creditors or to the public generally with the intention to defraud. No doubt the law of conspiracy is very wide, and convictions have frequently been obtained under it in respect of fraudulent acts in connection with companies which could not have been the subject of special indictment. But conspiracy necessarily involves fraudulent intention on the part of two or more persons, and does not cover cases of fraud of the same character, in which one person only is animated by fraudulent intention, while the other is merely a tool. And these are amongst the most frequent of the cases in which the public are defrauded under the Companies Acts. It should be remembered that the Larceny Act was passed before the Companies Act of 1862, introducing the principle of limited liability, became law, and therefore withcut any knowledge of the abuses which have subsequently sprung up under that Act, and it could hardly be expected to have adequately provided by anticipation for cases of fraud arising under the new practice. It appears, therefore, to be a matter for consideration whether, apart from any remedies of procedure, in relation to the formation and management of companies, it is not desirable to revise that portion of the criminal law which deals with company operations, with the view of consolidating its provisions, and making them clearly intelligible to all the parties interested, extending their operation where that may be found necessary, and providing for a more effective application of its provisions in the interests of public justice, and more especially in the interests of honest joint-stock enterprise, which greatly suffers from the unchecked prevalence of fraudulent practices. The committee which prepared the draft Amendment Bill, while refraining from dealing with this subject, express the opinion that, while the treating of non-compliance with the requirements of commercial law in matters difficult of interpretation, or the treating of errors of judgment, as criminal, is to be deprecated, "fraud ought to be punished wherever it is found, and the law should give facilities for its detection and punishment. Culpable negligence, and the wilful disregard of statutory provisions made for the protection of others, may also be properly treated as a subject for criminal law." |