Sm. 521) overruled. Decision of Kekewich, J. (75 L. T. Rep. 267) reversed.

Andrews v. Gas Meter Company Limited. Ct. of App: Lindley, Smith, and Rigby, L.JJ. Feb. 6.-Counsel: Warrington, Q.C., A. R. Kirby, and H. E. Wright; P. O. Lawrence, Q.C. and Eustace Smith. Solicitors for all parties: Blyth, Dutton, Hartley, and Blyth.] Settled Land Acts-Trustees-Sale of settled Land-Infant BeneficiaryAppointment of Persons resident in a Colony as Trustees-Form of Order-Settled Land Act 1882 (45 & 46 Vict. c. 38), ss. 2 (sub-sects. 1 and 8), 38, 59, and 60.-Under a will an infant, domiciled in New South Wales, and having no relatives in England, became entitled to a small share of certain real and leasehold property here. To avoid a partition it was desired to sell the property, and in order to effect the sale of the infant's share it was necessary to apply to the court, under sect. 59 of the Settled Land Act 1882, to appoint trustees of the settlement for the purposes of the Act. The proposed trustees were two persons resident in Australia. North, J. declined to make any order. Held, that the court had jurisdiction, under the Settled Land Act 1882, to appoint as trustees persons resident in the Colonies, and that, under the circumstances, the proposed trustees ought to be appointed trustees of the settlement effected by the will for the purposes of the Settled Land Act, according to the form in Re Wright's Trusts (24 Ch. Div. 662).

Re Simpson and Re Whitchurch. Ct. of App. : Lindley, Smith, and Rigby, L.JJ. Jan. 29.-Counsel: Vaughan Hawkins. Solicitor : George M. Light.]

HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Breach of Injunction-Aiding and abetting Agents and ServantsContempt Committal-Persons liable.-A person who knowing of an injunction assists in the breach of it is liable to be committed for contempt though not a party to the action nor a servant or agent of the person restrained. On the 15th July 1896 a perpetual injunction was granted in this action restraining P., the sole defendant, his undertenants, agents, and servants, from doing or suffering to be done anything on premises leased to P. by the plaintiff S. which might interfere with the full and quiet enjoyment by the plaintiff S. or his under-tenants of the premises adjoining or neighbouring thereto. The acts complained of were the holding on the premises leased to P. certain glove fights or boxing contests. These acts were repeated on the 9th and 21st Oct. A motion was then brought to commit P. and a servant of his. P. then swore an affidavit that he had never since the order had any control of the premises; that he had taken the lease thereof at the request of M., who had promised to indemnify him against all obligations, and had in Dec. 1895 taken possession of the premises and let into possession the Sports Club, by whom the contests obiected to were held. Thereupon the notice of motion was amended by asking for the committal of M. On the evidence, the court came to the conclusion that M. was informed of the injunction as soon as it was granted, and tha: he had been present on the 9th and 21st Oct., not as a mere spectator, but as assisting in the breach of the injunction. Held, that M., though neither a party to the action nor an agent or servant of P., must be committed, not for breach of the injunction, but for contempt of court in deliberately aiding and abetting acts against which he knew an order had been made. P. and his servant were also committed.

[Seward v. Paterson. Ch. Div. North, J. Jan. 15, 16, and Feb. 5, 6, 9. Counsel: Swinfen Eady, Q.C., and Methold; Seward Brice, Q.C. and Stephen Lynch. Solicitors: Proudfoot and Chaplin; Norris and Son; D. F. Cook.]

Company-General Meeting-Declaration of Dividend-Power to declare at extraordinary Meeting.-A limited company was incorporated on the 19th April 1895 for trading in South Africa. The articles of association provided that the general meetings should be held in July or August, and contained clauses in the usual form, providing that the business of an ordinary meeting should be, amongst other things, to receive accounts, balance-sheets, and directors' reports, and to sanction a dividend, and that at the ordinary general meeting in every year accounts should be produced, made up to a date not more than three months before the meeting. The first ordinary general meeting of the company after the statutory meeting was held on the 21st Aug. 1896. At this meeting the directors reported that, owing to the hostilities in South Africa, no accounts had been received; an account of receipts and payments in London only was produced, but no dividend was proposed or declared. On the 1st Feb. 1897 the directors issued a notice calling an extraordinary general meeting for the 11th Feb., at which they proposed to present accounts (which had now been received from South Africa), made up to 31st Aug. 1895, and to declare a dividend of 10 per cent. A shareholder brought an action to restrain the declaration of this dividend. Held, semble, that the company had no power, without altering their articles, to declare a dividend except at an ordinary general meeting; and that, even if they could sanction a dividend at an extraordinary meeting, it must be at a meeting at which such a statement of accounts was produced as was required at an ordinary meeting: as the statement of accounts to be produced at the proposed meeting was not made up to a date within three months of the proposed meeting, the injunction was granted.

Nicholson v. Rhodesia Trading Company Limited. Ch. Div.: North, J. Feb. 10.-Counsel: Levett, Q.C. and S. A. T. Rowlatt; F. Ritter. Solicitors: Torr and Co.; H. R. Sadd.] Company-Winding-up-Practice-Costs-Party appearing on Petition. -Where creditors appeared in support of a winding-up petition by the same solicitors as the company, which had not opposed the petition,

Inland Revenue· - Account Stamp Duty — Gift · Donee Estate-Liability-Customs and Inland Revenue Act 1881 (44 & 45 Vict. c. 12), 88. 38 and 39-Customs and Inland Revenue Act 1889 (52 & 53 Vict. c. 7), s. 11.-Summons by the trustees of a will to determine, among others, the following question, namely, whether account stamp duty, in respect of a certain sum of £1700 given by the testatrix, Mary Foster, to the defendant, Arthur Foster, within twelve calendar months previous to her death, was payable by the said defendant, or out of the estate of the testatrix. The testatrix died on the 14th Nov. 1892. The said Arthur Foster had delivered an account "duly stamped" pursuant to sect. 39 of the Customs and Inland Revenue Act 1881. Held, that sect. 39 of the Customs and Inland Revenue Act 1881 necessitated the payment of the duty by the donee, but quære, if the duty had been paid out of the estate, whether there would be any right of action on behalf of the estate against the donee.

[Re Foster; Thomas v. Foster. Ch. Div.: Kekewich, J. Feb. 3.Counsel: George Henderson; Warrington, Q.C. and E. Beaumont. Solicitors: Hunters and Haynes; Fladgate and Co.] Patent-Slander on Title-Allegation of Infringement-Advertisement— Threatening Legal Proceedings-Exclusive Licensees of Patent-Present Interest in Subject-matter-Damages for Infringement-Injunction— Patents, Designs, and Trade Marks Act 1883 (46 & 47 Vict. c. 57), s. 32. -This was a motion for an injunction to restrain the defendants until the trial of the action from publishing in any advertisements or other documents any statements that the incandescent gas mantles of the plaintiffs' manufacture are or will be held to be any infringement of the patent of Mr. Rawson, or from publishing any statement in reference to any alleged infringement of the said patent by the plaintiffs. The portion of an advertisement which was complained of was in the following terms: "The Sunlight Company are owners of the Rawson process for stiffening mantles for transport. An action against the

Welsbach Company for infringement of this patent will shortly be heard, and, we are advised, will establish the validity of the patent and render all users of their mantles liable to proceedings at law, and all stocks of such mantles to be destroyed by order of the court." By an agreement, dated the 4th May 1896, the Sunlight Company had, in the opinion of the court, granted to the defendant company an exclusive licence to work the Rawson patent, and to treat their mantles by the process protected by the said patent. The plaintiffs carried on business as manufacturers of incandescent gas mantles under the process described in the Welsbach patents, and the validity of the plaintiffs' master patents had been repeatedly certified. The plaintiffs contended that the defendant company by their advertisement had threatened the users of the Welsbach process with legal proceedings or liability, and that, under sect. 32 of the Patents, Designs, and Trade Marks Act 1883, or by reason of the common law rights of the plaintiffs, the defendant company should be restrained from issuing the advertisement. On the other hand, the defendant company contended that the Sunlight Company had commenced an action to enforce their alleged legal rights against the plaintiffs; that the statements in the advertisements were true, and were made in good faith; and that, at the time when they made the statements complained of, they had a present vested interest in the subject-matter of the patent alleged by them to have been infringed. Held, that the plaintiffs were not entitled to an injunction : (1) because, the Sunlight Company having commenced an action against the plaintiffs, sect. 32 of the Patents, Designs, and Trade Marks Act 1883 could not be relied upon; (2) because the advertisement complained of, though not literally true, was true in substance and in fact, and no mala fides had been shown; and held, also, that the defendant company, being exclusive licensees of the patent with an option of purchase, had an interest in making the statement complained of, notwithstanding the fact that the defendant company might never be entitled to recover damages in respect of present infringements.

[The Incandescent Gas Light Company v. The New Incandescent (Sunlight Patent) Gas Lighting Company. Ch. Div.: Stirling, J. Jan. 21 and 28, and Feb. 2.-Counsel: Fletcher Moulton, Q.C. and A. J. Walter; Bousfield, Q.C., Roger Wallace, QC., and C. E. E. Jenkins. Solicitors: Faithfull and Owen; Hugh C. Godfray.]

QUEEN'S BENCH DIVISION.

Bill of Sale-Chattels specifically described-Exceptions- Plant brought on Premises in Substitution for Plant specifically subscribed-Meaning of "Plant "-Horses-Bills of Sale Act 1882 (45 & 46 Vict. c. 43), 88. 4 and 6, sub-sect. 2.-Appeal of the claimants, in an interpleader issue, from a decision of the learned judge of Westminster County Court. Sect. 4 of the Bills of Sale Act 1882 provides that a bill of sale shall have effect only in respect of the personal chattels specifically described in the schedule to the bill. Sect. 6 provides that sect. 4 shall not render a bill of sale void in respect of (2) "Any fixtures separately assigned or charged, and any plant or trade machinery, where such fixtures, plant, or trade machinery are used in, attached to, or brought upon any land, farm, factory, workshop, shop, house, warehouse, or other place, in substitution for any of the like fixtures, plant, or trade machinery specifically described in the schedule to such bill of sale." In June 1896, one Rowe, a jobmaster, granted to the claimants a bill of sale of personal chattels, including two horses at the premises which he then occupied, which horses were specifically described in the schedule to the bill. Rowe afterwards moved to other premises without notice

to the claimants, and on visiting the new premises the claimants found that the two horses described in the bill of sale had disappeared. Rowe then stated that he had sold the two horses and replaced them by other two better ones, which he pointed out. Rowe subsequently sold these latter horses to a purchaser, who had no knowledge of the bill of sale, and they formed the subject of the present interpleader issue. The learned County Court judge decided that the two horses did not pass under the bill of sale, inasmuch as they were neither specifically described in the schedule as required by sect. 4, nor were they within the exception of sect. 6, sub-sect. 2. On appeal, counsel for the claimants contended that the horses were "plant used in or brought upon the premises in substitution for like plant specifically described in the schedule, and cited the case of Yarmouth v. France (19 Q. B. Div. 647), in which the Court of Appeal held that vice in a horse was a defect in "plant" within the meaning of the Employers' Liability Act 1880, sect. 1, sub-sect. 1. Held (affirming the decision of the County Court judge), that, for the purposes of sect. 6, sub-sect. 2, of the Bills of Sale Act 1882, "plant" means something analogous to "fixtures;" and therefore horses, although they might be plant within sect. 1 of the Employers' Liability Act, are not "plant" within the meaning of this sub-section. Held, further, that the horses were not "used in" or "brought upon" the premises in substitution, &c. The substitution mentioned in the sub-section must be local substitutioni.e., substitution in the same place in which the original chattels were situated.

[Re Squire and Creasy. Q. B. Div.: Wright and Bruce, JJ. Jan. 29. Counsel: for the claimants, Lynden Bell; for the respondent, Clavell Salter. Solicitors for the claimants, Rowland Ward; for the respondent, Alfred Slater.]

Poor Law-Settlement by Residence-Term of Three Years-Irremovability in each Year-Period of Absence as Patient in HospitalDivided Parishes Act 1876 (39 & 40 Vict. c. 61), s. 39-9 & 10 Vict. c. 66, s. 1). Appeal from a decision of the Recorder of Canterbury ordering the removal of Edward James Farr from the parish of St. Mary Bredin, in the city of Canterbury, to the parish of Rotherhithe, in the St. Olave's Union. In 1888 Arthur Farr, the father of the pauper, sent the child, who was then about a year old, to live with relatives at Ashford, in the appellant union, and the child continued to live there till April 1896, when, at the age of nine, he became chargeable to the union. Arthur Farr never intended the child's absence to be permanent, nor did he abandon his right as father to the custody or control of the child, but he never contributed towards its support. On the 23rd July 1892 Arthur Farr remarried, and on the same day went to live at Rotherhithe, in the appellant union, and from that time till his death continued to have his home there. On the 1st May 1895 Arthur Farr was admitted into the Brompton Hospital for Consumption, situate outside the appellant union, where he remained till the end of June. He then went to a convalescent home at Sandgate (also outside the appellant union), where he remained till the 29th July 1895, when he returned to his home in the appellant union, and remained there till his death in April 1896. Arthur Farr always intended to return to his home, and during his absence in the hospital, &c., his wife remained there. The learned Recorder, upon these facts being proved, held: (1) That Arthur Farr had acquired a settlement in the appellant union, and (2) that Edward James Farr had not become irremovable in the respondent union. The appellant union appealed. The terms upon which a person can acquire a settlement are contained in sect. 34 of the Divided Parishes Act 1876, which provides as follows: "Where any person shall have resided for the term of three years in any parish in such manner and under such circumstances in each of such years as would in accordance with the several statutes in that behalf render him irremovable, he shall be deemed to be settled therein. ." By 9 & 10 Vict. c. 66, s. 1, the time during which such person shall "reside as an inpensioner in Greenwich or Chelsea Hospitals, or shall be confined in a lunatic asylum or as a patient in a hospital shall for all purposes be excluded in the computation of time necessary to confer a status of irremovability (i.e., by 28 & 29 Vict. c. 79, s. 8, one year). It was now contended by counsel for the appellants that Arthur Farr had not resided in Rotherhithe for three consecutive years in such a manner that his residence would in each of the three years have rendered him irremovable, as required by the statute, since the months of May, June, and July 1895, during which he resided or was confined as a patient in Brompton Hospital and the convalescent home must be excluded from that year. He cited Dorchester Union v. Weymouth Union (54 L. T. Rep. 52; 16 Q. B. Div. 31). Held (reversing the order of the learned Recorder), that Arthur Farr had not acquired a settlement in the appellant union by reasen of his absence in the hospital during part of one of the three qualifying years.

[St. Olave's Union v. Canterbury Union. Q. B. Div.: Wright and Bruce, JJ. Jan. 29.-Counsel: for the appellants, Macmorran, Q.C. and Harper; for the respondents, G. Hohler. Solicitors: for the appellants, Arckoll, Cockell, and Chadwick; for the respondents, Speechly, Mumford, and Co., for John Plummer, Canterbury.] Practice-Summary Jurisdiction (Married Women) Act 1895 (58 & 59 Vict. c. 39), 88. 4, 11-Appeal.-This was a case stated by justices of the borough of Louth under 20 & 21 Vict. c. 43. An application was made to the justices as a court of summary jurisdiction, under sect. 4 of the Summary Jurisdiction (Married Women) Act 1895, by a married woman for an order against her husband for maintenance on the ground of his wilful neglect to provide reasonable maintenance for her, thereby causing her to leave and live apart from him. The justices made the crder, and the husband applied to them to state a case on the ground

that he was dissatisfied with their decision in point of law, and the justices stated a case accordingly. Counsel on behalf of the respondent now took the preliminary objection that, by sect. 11 of the Summary Jurisdiction Act 1895, an appeal against an order of a court of summary jurisdiction under that Act is in terms given to the Probate, Divorce, and Admiralty Division of the High Court, and therefore there was no appeal by case stated to this court. He cited Swoffer v. Swoffer (1896) Prob. 131). For the appellant it was contended that, the order being made by a court of summary jurisdiction, the ordinary law applied, that there is an appeal to this court by way of case stated. Held, that the statute having in terms given an appeal to the Probate Division, that is the only court to which an appeal will lie against orders made under this Act.

[Manders v. Manders. Q. B. Div.: Wright and Bruce, JJ. Jan. 21. -Counsel: for the appellant, J. H. Walker; for the respondent, M. Shearman. Solicitors for the appellant, E. G. Elwes, for W. Haddon Owen, Louth; for the respondent, E. H. Wyles, for J. Barker, Grimsby.]

OUR LITERARY COLUMN.

AN ILLUSTRIOUS IRISH JUDGE. "His was a model type of the judicial character." These were the concluding words of the reference made by the Lord Chief Baron of Ireland (the Right Hon. Christopher Palles) to the late Hon. Francis Alexander Fitzgerald, who died last week in Dublin, and who had been one of the Barons of the Irish Court of Exchequer from 1859 till his retirement in 1882. The estimate thus formed by the Lord Chief Baron of the character and career of Mr. Baron Fitzgerald will find its full and enthusiastic endorsement throughout the legal world. Mr. Baron Fitzgerald was in truth the realisation of the ideal judge. Honours and promotion were forced upon him. He sought them not. Although a career in Trinity College of unusual brilliancy gave promise of future eminence, Mr. Fitzgerald was for many years at the Irish Bar in thankless obscurity, and literally without a brief. While in disposition the humblest of men, his rigid ideal of independence and propriety gave to some of his actions the semblance of pride. The story told of him is, we believe, no fiction, that he actually returned a brief which he suspected had been procured for him through the kind offices of a friend. When business once came to him, he rapidly rose to the very highest eminence at the Bar. He never applied for "silk"; when it was offered to him, he accepted it in the hope that the work for which he would be more highly remunerated would be diminished in quantity. The taking of "silk," however, was only the commencement with him of a still greater demand upon his services, and it is believed that no barrister of his generation at the Irish Rar ever received so much work. Mr. Fitzgerald, whatever the fatigue to him might be, read and mastered every brief. In this habit, to which he conscientiously adhered, he was compelled to abridge not merely his period of social recreation, but actually his time for rest, and he adopted snuff-taking as an antidote against falling to sleep. In Ireland since 1834 a puisne judgeship is accepted in usual course by the law officers of the Crown, and, as Mr. Butt used frequently to complain, promotions to the bench are frequently the rewards of political services, and not of professional desert. In Mr. Fitzgerald's promotion there was a departure from this system, which was rendered practically imperative by his pre-eminent merit. He worked devotedly at his profession. He had never held a brief for the Crown, never been a Crown prosecutor, or a law officer, had never been in the House of Commons, or contested a constituency, and had never spoken or even appeared on a political platform. Once, indeed, he had been counsel for the defence in a State trial. Although an equity specialist at the time, he was retained with Mr. Whiteside as "special" to defend Mr. Smith O'Brien on a charge of high treason. He mastered for this trial the principles and technicalities of criminal jurisprudence, and it is well known that Mr. Whiteside's challenge to the array and objections to the indictment in that case, and all the legal learning involved therein, were the products of Mr. Fitzgerald's acute and subtle brain. When, in 1859, Mr. Fitzgerald was appointed to the Irish judiciary, there was not a member of that judiciary who had not, either as a law officer of the Crown or a party man in the House of Commons, been a militant politician. On the bench Mr. Fitzgerald became as famous for his decisions as he had been for his arguments while at the Bar. He likewise strictly maintained the judicial character as he had maintained the professional character. He devoted himself to his judicial work, and kept rigidly aloof from all places or occupations through which he might be brought under the influences of the passions, prejudices, and intrigues which more or less prevail in political circles. He was never a member of the Irish Privy Council; he was never a member of any of the public boards to which it is the usual but most objectionable practice to appoint Irish judges. He never accepted any favour from the Crown, and certainly never solicited any favours for members of his family. Mr. Fitzgerald's high sense of the judicial character was manifested in other ways. Sir Michael O'Loghlin who was Master of the Rolls in Ireland from 1837 till 1841, had, with the knowledge of the system that had prevailed in his time when practising at the Irish Bar, positively forbidden his son to hold a brief in any case coming before him. Mr. Fitzgerald's sense of propriety was so delicate that it was an acknowledged fact that a near relative, now one of the most distinguished judges on the Irish Bench, whose abilities created the utmost demand for his services at the Bar, had a worse chance than anyone else in appearing before the late Baron. In fact, the Baron held a brief for the opposite side, and, if possible, refused the application of the counsel

to whom as a relative he was devotedly attached. Nay, more, he refused to go as Judge of Assize on the circuit of which that gentleman was a member.

A judge who has been a public prosecutor must have rather a leaning in favour of prosecutions in which he has taken so practical a part. Baron Fitzgerald in presiding at a criminal trial was fairness itself to the accused; saw that no point that told in his favour was lost to the jury, and insisted on the trial being conducted, not as a foregone conclusion, but as a strictly judicial investigation. It is of interest in this connection to observe that he severed his association with the Bench owing to a difficulty which he regarded as insurmountable in the administration of Irish criminal law. In 1882 a Coercion Act was passed, by whose provisions, which in this respect were never enforced, Irish judges were in certain conditions to try prisoners without a jury. Baron Fitzgerald regarded these provisions as derogatory to the judicial office, and immediately resigned his seat on the Irish Bench in the plenitude of his mental, and we might almost say of his physical, powers. It is not unworthy of note that six years before he took this step, to the deep regret of the Bar, and to the loss of the public at large, he was offered, but declined, the great post of Lord Chief Justice of Ireland, partly, perhaps, from the knowledge that no promotion could place him higher in the respect of his world than he was, and partly, too, from his great aversion to presiding at criminal trials-an aversion which prevailed on Mr. Saurin at an earlier period to refuse the same office. Baron Fitzgerald's fifteen years of retirement were years of enormous mental activity. He was not only a great lawyer, but a great metaphysician and theologian, and he was enabled, surrounded by devoted friends, to gratify his simple, single-minded studious tastes. For kindness, sympathy, amiability, a desire to befriend young men struggling at the Bar, Mr. Baron Fitzgerald's memory will be gratefully treasured, while his career will be remembered as one which for sixty-three years reflected lustre on the Bar of Ireland.

We will conclude with the words of Lord Chief Baron Palles on Baron Fitzgerald's death:-"We cannot resume the business of the court without adverting to the distinguished man who, full of years and honours, passed away from us yesterday. The best traditions of the Irish Court of Exchequer are inseparably linked with the name of Francis Alexander Fitzgerald. He was appointed a Baron of this court upwards of thirtyseven years since, and he continued to fill his high office for nearly a quarter of a century. It is not for me to enlarge upon the conspicuous ability which he brought to the discharge of his duties, the vast store of legal knowledge which he had made his own, his unrivalled powers of reasoning, or the lustre which his administration shed not only on this court, but on the entire Irish judiciary. These matters belong to the history of our law, and I might say to the history of the country. They were known to and appreciated by each one who practised before him ; they were recognised and admired by each of his colleagues on the bench. But I cannot avoid alluding to his kindliness of disposition, which extended at once to the youngest practitioner at the Bar and to the most senior of his colleagues on the bench. There is no one who owes more than I do to this marked trait in his character. Appointed as I was to a position in this court nominally above that held by Baron Fitzgerald, I had the incalculable advantage of his ever constant and unrivalled experience and assistance, of which he permitted me constantly and freely to avail myself. My intimate association with him early led me to the opinion, which I have since retained, that his was a model type of the judicial character."

GOVERNMENT BY LAWYERS.

An Address delivered by SEYMOUR D. THOMPSON, before the Bar Association of Texas. IN the ruder stages of human development the offices of military leader, legislator, magistrate, priest, and physician, are often united in one person; of which we see instances in the Angekok of the Esquimaux, and the medicine-man of our native tribes. As mankind progresses in its development, each of these offices becomes more complicated and requires for its ministry a longer study, a more patient application, and a more varied experience; each, therefore, demands for its successful prosecution, all the time and strength of its incumbent; and in the general division of labour and exertion, each falls to the lot of single individuals, who, in time, form a separate class in the body politic. In the public opinion of vital nations, the general, the man whose skill and courage leads the people to military successes, stands first in the public estimation, it is only in decaying civilisations, like that of China, that the scholar is preferred before the soldier. Next in importance to the soldier, in every vital State, stands the lawyer, the man who makes, expounds, and administers the laws. Behind him, with hourly diminishing importance, comes the priest, the clergyman, the man whose profession is supposed to concern our relations with the eternal world; a profession which, though in past ages clouded with superstition and stained with crime, has been rendered luminous with a long array of saints, martyrs, and philanthropists. A subdivision of the same profession, from the condition which it occupied in the earlier stages of human development, brings immediately behind him that profession which, though perhaps the least obtrusive, is not the least useful of any, which abounds in noble and gifted men, whose whole lives, careless of gain and self, are devoted with disinterested zeal to the advancement of human knowledge and the mitigation of human suffering. In the monarchical stages of government, the first and third of these professions, that of the soldier and the priest, have combined to tyrannise and oppress mankind; and the human family have been weighted down for ages by a double tyranny which it has seemed impossible to lift-the terrors of superstition and the power of the sword. Government by the priest alone has been long endured by mankind, and has not been found the worst of human government. Laws based upon religion, and religion

associated with morals and with justice, and justice administered, as in the Jewish Sanhedrim, in the presence of God himself, and consequently without the aid of lawyers, have been, in ruder ages, a much more tolerable kind of government than the mere caprice of the sword. But when the priest forgot the sanctities of his holy office, and lent himself to the aid of the military despot, mankind discovered that the most grievous of all governments, the hardest to be borne, and the hardest to shake off, was a government of the soldier and the priest combined.

You men of Texas conquered your liberties from such a government; and in your Declaration of Independence, adopted on the 2nd March, 1836-a day which ought for ever to be a sacred holiday in Texas-you emphasised your unalterable opposition to such a government, in language that will go sounding down the ages. You charged that "the Federal republican constitution of your then country-that is, of the Republic of Mexico which you had sworn to support, no longer had a substantial existence; that the whole nature of your government had been forcibly changed, without your consent, from a restricted, federative republic, composed of sovereign States, to a consolidated, central military despotism, in which every interest was disregarded but that of the army and the priesthood, both the eternal enemies of civil liberty, the ever-ready minions of power, and the usual instruments of tyrants." You charged that the Mexican nation, in the late changes made in the government by Gen. Antonio Lopez de Santa Anna, who, having overturned the constitution of his country, now offered you as the cruel alternative, either to abandon your homes, acquired by so many privations, or to submit to the most intolerable of all tyranny, the combined despotism of the sword and the priesthood. You arraigned the Mexican government for denying to you the right of worshipping the Almighty according to the dictates of your consciences, by the support of a national religion, calculated to promote the temporary interest of its human functionaries, rather than the glory of the true and living God. For these and other enumerated grievances you Texans, by that immortal instrument, severed your political connection with the Mexican nation, declared yourselves to be a free and independent republic, and, "conscious of the rectitude of your intentions, you fearlessly and confidently committed the issue to the Supreme Arbiter of the destiny of nations."

That great first charter of your liberties was undoubtedly drawn by the hand of a lawyer. The members of the Legal Profession, always conspicuous as public leaders, played a most important part in your struggle for independence. They commanded your companies, your regiments, and your expeditionary forces. Sam Houston, who commanded your army of liberation on the field of San Jacinto, where you defeated and took prisoner the Mexican Dictator, and finally achieved your independencewas a lawyer no less than a soldier. Nor, after you had achieved your independence, were you unmindful of the Legal Profession in bestowing civic honours. Fourteen of your counties are named for distinguished judges. Shall I call that roll of honour? Their names are Collingsworth, Donley, Ector, Gray, Handsford, Hemphill, Hutchinson, Lipscomb, Mills, Ochiltree, Oldham, Wheeler, Wilson, Winkler. A still greater number, perhaps, bear the names of distinguished lawyers who never ascended the judicial bench, but who rendered important services to their country in its struggle for independence, and in its subsequent political development. In your last Legislature, in a House of Representatives composed of 128 members, fifty-one were lawyers. In a Senate composed of thirty-one members, twenty-two were lawyers. And your Governor, Secretary of State, Attorney-General, railroad commissioners, and Land Office commissioners, are all lawyers.

These digressions into historical facts, which have a peculiar and tender meaning for you Texans, will serve to illustrate the dual truth that no species of human government is more oppressive and more odious than the combined goverment of the priest and the soldier; and that lawyers, among our race at least, always play a conspicuous part in the struggles for liberty. Lawyers have always been an inconvenience to despots. The tyrant is continually stumping his toe against the lawyer. Napoleon, the son of a lawyer, hated lawyers. When he first conspired to overturn the government of France, to drive out the legislature, and to make himself master of the liberties of his country, his proposition to his military co-conspirators was to clean out the lawyers.

Shall I extend this field of illustration? The Magna Charta, which the barons extorted from King John at Runnimede, was undoubtedly written by lawyers. It was a lawyer who first, in our ancestral country, disputed the doctrine that the king was above the law, and whose undaunted courage gave us that second charter of liberty, the Petition of Right. It must have been a lawyer who drew the celebrated Habeas Corpus Act. It must have been a lawyer who drew the celebrated statute, 1 Wm. and Mary 1, which settled the succession of the Crown on its modern basis, and declared the rights of the subject a statute from which the first eight amendments to the Federal Constitution, placed there through the influence of Mr. Jefferson, were drawn, and whose essential provisions are embodied in the Declaration of Rights in every American State constitution. It was a lawyer who drew the Declaration of Independence, promulgated by the Congress of the thirteenth British North American colonies on the 4th July 1776. It was Gambetta, a lawyer, who proclaimed the present French Republic in 1870. If the convention which framed the constitution of the United States, at once the greatest and the briefest political code that was ever written-the greatest instrument, as was said by Mr. Gladstone, that was ever thrown off at a dash, so to speak, by the hand of man-if that convention was presided over by a soldier, we have the testimony of "Elliott's Debates for the conclusion that its work was almost entirely the work of lawyers. And it may be truly said that that remarkable instrument, which established a government acting directly upon the people, which committed to the general government those matters which could not be safely or conveniently left to the separate States, and which reserved to the separate

States, those liberties which could not be safely or conveniently surrendered to the general government, was the work of a collection of able and patriotic lawyers of that early day, who proceeded without model and almost without precedent. The same is true of all our State constitutions; they have been eminently the work of lawyers. While agriculture, commerce, manufactures, the arts, and literature have all been to some extent represented in our constitutional conventions, yet the representatives of these interests have occupied positions entirely subordinate to the positions occupied by the lawyers, positions analagous to that of lay judges in Pennsylvania and New Jersey: they were to be consulted on questions of fact merely, and were to nod their heads when the lawyers spake.

Our Federal constitution was, as I have said, almost exclusively the work of lawyers. But it would have been destitute of all symmetry, and would have been but partially efficacious, if its interpretation had been left to the irregular and turbulent action of legislative bodies. It became then, unavoidably necessary that its authoritative and final interpretation should be committed to that department of the government which, by reason of its learning, its open, orderly, and dignified methods of procedure, its habit of hearing argument in all cases before deciding, and of publishing the reasons for its decisions; but, above all, by reason of the independence of its members from the other branches of the government and even from the people themselves-because of the permanency of the tenure of their offices-was alone suited to the performance of so great a task. It is true that the office of supreme interpreter of the constitution was never, by that instrument itself, committed to the Supreme Court. On the other hand, the little in the constitutional convention on the subject which has come down to us indicates a purpose to withhold it. But the office was imposed upon the court by an overwhelming and unavoidable logic. Its judges were, in conformity with the constitutional mandate, sworn to support acts of Congress. Whenever, therefore, in the exercise of their granted jurisdiction, they might be driven to a choice between upholding an act of Congress and upholding the constitution, their oaths of office, prescribed by the constitution itself, obliged them to uphold the latter. Moreover, the constitution was a most solemn instrument, which did not become binding until ratified by three-fourths of the States; nor could it be amended without the consent of a like proportion of the States. But how trival would the instrument have become if it could have been amended, or in part repealed, or disregarded, by a bare majority of the two houses of Congress, with the concurrence of the executive, in times of turbulence or popular excitement. The duty of the court, then, although never expressly enjoined upon it, when exercising its regular and proper jurisdiction, to refuse to enforce an act of Congress, or an act of a State legislature, which is plainly opposed to the national constitution, seems as unavoidable as a syllogism in logic or a theorem in geometry. This power on the part of the judicial branch of the government to set aside unconstitutional acts of legislation was not assumed without challenge ; nor was it assumed for the first time by the Supreme Federal Tribunal, several State decisions asserted the power prior to the time when it was declared to exist by the Supreme Court of the United States in the case of Marbury v. Madison. The exercise of the power, having been vindicated by Chief Justice Marshall in that celebrated case, in language which, although possibly obiter, stands to this day unanswered and unanswerable, was asserted in turn by the highest judicatories of the States, and it has become so firmly embodied in our American constitutional jurisprudence, that it is not likely to be disturbed at any near period in the future.

An obvious abuse of the power has exacted more attention and deserved more reprobation. One of the fundamental conceptions of our national constitution was an entire independence of the three departments of the Government, each from the control or influence of the others. Following the doctrines of De Toqueville, the framers of that instrument sought in that way to create a government of checks and balances, taking the just view that such a government would be more favourable to liberty. The legislative power was committed to the two Houses of Congress, with a limited concurrence on the part of the executive. The appointment of public officers and the conduct of foreign relations were committed to the concurrent action of the President and the Senate. The administration of public and private justice was vested in the judiciary. To remove this branch of government, as far as possible, from the control of the other two, the judges were to be appointed during good behaviour and their compensation was not to be diminished during their terms of office. Beyond all question, it was intended to divide the powers of government into three independent departments, working in harmony, mutually supporting each other, and yet each independent of the others. This plan has been imitated in all our State constitutions, it has been imitated in the constitution of the federative republic which lies on our Southern border; and if there is anything which may be said to be axiomatic in American constitutional law, it is the proposition that neither of the three departments of government can rightfully interfere with the workings of either of the others. It is to be profoundly regretted that this salutary principle was first violated by the indicial department in the case of Marbury v. Madison, already referred to. The power was there asserted on the part of the judicial branch of the Government to direct coercive process against officers of the President's cabinet-in effect against the President himself-to compel the doing of acts that were regarded as ministerial merely. The Supreme Court, while disclaiming such jurisdiction for itself-since, with certain limited exceptions, it had appellate jurisdiction only-asserted it for the inferior Federal judicatories; and its exercise was attempted by them, but was successfully resisted by President Jefferson, and, in my judgment, rightfully resisted. But, following the doctrine of this decision, or, rather, of this extra-judicial fulmination for the court had really nothing to decide except its own want of jurisdiction to decide anything-the State judicatories have, almost

without exception, asserted the power to control the action of the executive department of their State governments in what are called ministerial matters, that is, matters which do not involve the exercise of an exclusive discretion, by sending writs of mandamus to the heads of executive departments, and even, in some instances, to the Governor himself. It is true that no Federal judicatory has yet sent its writ of mandamus or of certiorari to the President of the Senate, or to the Speaker of the House of Representatives: that is yet to come, in the manifest and steady progress of usurpation. The Federal judiciary have found other means with which to lay their coercive hands upon the legislative department of the Government, even to the extent of restraining the Houses of the National Legislature in the just exercise of their powers.

Within a recent period we have seen and applauded the coercion of the House of Representatives of the United States by an action at law brought against its Sergeant-at-Arms in a local court of the District of Columbia. to recover damages for a false imprisonment, consisting in the mere fact of an arrest by that officer under a warrant issued by the Speaker of the House in compliance with a resolution of the House, to compel the attendance and coerce the testimony of a recusant witness, in a case where it was sought to investigate an alleged fraudulent bankruptcy of a debtor to the United States. Instead of resisting an encroachment by another branch of the Government upon powers which had belonged to each of the Houses of the British Parliament time out of mind-which were always. regarded as a part of the lex parliamenti or common law of Parliament, and which had been inherited by the two Houses of our National Legislature the Senate, instead of asserting its right to punish a contempt against its own dignity and authority, tamely remitted the vindication of its dignity and honour to a prosecution by indictment in a local court of the District of Columbia. The spectacle was no less than that of witnesses who had refused to testify before an investigating committee of the American Senate, in a case where it was alleged that senators had been bribed and corrupted by the so-called Sugar Trust, being prosecuted for their recusancy, as for a crime, before a local and inferior Federal judicatory. A few more such arrogant encroachments by the judicial upon the legislative branch of the Government, and a few more such shameful submissions, would reduce the National Legislature to such a depth of degradation and pusillanimity that, to quote from a celebrated judicial opinion, "its blazonry might well be a cap and bells and pointless spear." Instances of the encroachments by the judicial upon the executive power. equally bold and less honest, are discovered in the practice which was invented and successfully applied in Dodge v. Wolsey, of a stockholder in a corporation bringing a collusive suit against the directors to compel them, by judicial process, to refrain from doing what both parties wanted to avoid doing, the complying with a revenue law of a State, and, in a case never to be mentioned without regret, this device was successfully resorted to for the purpose of overthrowing a revenue law of the United States. In these and other like cases the profession that the object of the suit was to restrain. the directors from complying with an unconstitutional revenue law was a mere pretence; both the complaining stockholder and the defendant directors desired the same thing; and that result, thus accomplished, was nothing less than the enjoining of the executive branch of the government, State or Federal, from collecting revenue which might be vital to the existence of the State or nation.

It is said that a good judge will amplify his own jurisdiction. This maxim may well be challenged. A judge occupies a public trust, or a public agency, and he is, like any other trustee or agent, entitled to wield only those powers which have been conferred upon him by a just and proper interpretation of the instrument creating the trust or agency. The true meaning of the maxim is, that a good judge will amplify remedies to the end of doing complete justice. Men are greedy of power; judges are but men judges are, therefore, greedy of jurisdiction. The known tendency of all courts is to amplify their own jurisdiction. The court which assumes without challenge, to judge finally and exclusively, not only of the extent of its own powers, but also of the extent of the powers of both of the other branches of the government, may well challenge attention. So long as this right is acquiesced in, we shall witness the spectacle of Federal judicatories continually enlarging their own powers, by successive encroachments upon the corresponding powers of the legislative and executive branches of the general government, and of all branches of the State governments.

To promote this expansion of power, we have seen the Legislature of a State prohibited from repealing a public grant, got from its predecessors by the most notorious corruption. We have seen the Legislature of a State prohibited from making a useful modification of the charter of an eleemosynary corporation, long after the death of all its founders; and, subsidiary to this, we have been taught the doctrine that an executed gift is a contract within the meaning of the Federal Constitution. We have seen the sovereign power of taxation bargained away by corrupt legislatures to private corporations, and future legislatures prohibited for all time from resuming the power. We have seen, under the name of preserving the inviolability of contracts, rights got by bribery from vena! legislatures endowed with sanctity and immorality, and placed for ever beyond the reach of the people. We have seen useful and necessary revenue laws of the States, and of the United States, suspended and nullified. We have seen the executive officers of our governments, both Federal and State, subjected to compulsory judicial process.

We have

seen corporations aggregate declared to be "citizens," within the meaning of the same instrument, for the purpose of enlarging the jurisdiction of the courts of the United States and seizing a portion of the jurisdiction rightfully belonging to the States. We have even seen the Supreme Federal Tribunal arrogate to itself, with a general public acquiescence, the jurisdiction of deciding, between two contestants, which is the lawful governor of one of the States-a question which, from its very nature, eludes Federal jurisdiction and control.

These are some of the results of what may be called "government by awyers." It is government by that department of the government which is composed exclusively of lawyers, and which arrives at its determinations exclusively by the aid of the lawyers. It is not government by sovereign legislatures. It is not government by representatives of the people elected by them to make their laws. It is not government by an executive who proceeds, under the command of the constitution, to "take care that the laws be faithfully executed," and who must resign his powers to the people at the expiration of four years. It is not what our British brethren who, since our separation from them, have advanced further in popular government than we have, are accustomed to designate by the name of "responsible government." On the contrary, it is the most irresponsible of all government. It is government by a body which is responsible to no one; for the national House of Representatives has no time to impeach, nor has the Senate time to try an impeachment of a Federal judge; even if, in the things that I have enumerated, there could be found any ground of impeachment within the meaning of the constitution. Even in the time of Mr. Jefferson, when few of the remarkable advances in jurisdiction which I have enumerated have taken place, that far-seeing statesman, descanting upon the encroachments by the judicial upon the other branches of the Government, declared again and again in his published letters that impeachment was not even a scare-crow. He saw the spectacle of the Federal judiciary, in the enlargement of its own powers, "advancing its noiseless step like a thief over the field of jurisdiction; proceeding by a steady process of sapping and mining; its opinions "huddled up in conclave ;" and he raised the alarm against the manifest encroachments of that branch of the Government upon the others- the only branch of the Government totally out of touch with the people, in no wise responsible to them, or to any one for them; and he predicted that, unless those encroachments should be resisted, all the powers of the Government would ultimately be absorbed by the judiciary. Certainly government by the Federal judiciary is not " government by the people." It is not, as governments should be in a republic, government near the people. And it may well be doubted to what extent it is government for the people."

It has not escaped attention, that the general trend of this irresponsible government, by lawyers, is in favour of the rich and powerful classes, and against the scattered and segregated people. The Dartmouth College decision was ostensibly rendered to protect the charter rights of a small college; and Daniel Webster shed tears when, in his argument of that celebrated case, referring to the college as his alma mater, he suggested to the court that it was but a small college. It was rendered in favour of clamorous corporate interests, which, by the most notorious log-rolling and manipulation of the press, had prepared the way for it. The decision was so utterly opposed to the first conceptions of the meaning of the constitution that it is doubtful whether, if it could have been foreseen, the Federal compact could have been formed. The subsequent decisions of the court that one legislature could bargain away for all time, the right of taxation-the very right of a State to exist-were likewise rendered in the interests of incorporated money and power.

The Income Tax decision, in which the court, by a bare majority of its judges, overruled two of its previous unanimous decisions, the first having been rendered at a time when two members of the late constitutional convention sat as judges in the court, was rendered in a suit obviously collusive, and at the beck of the wealthy and influential classes. Nor can anything, couched in decorous language, be said of that decision more severe than can be found in the opinions of the dissenting judges. By that decision five lawyers struck down the power of Congress to raise revenue by one of the means employed by all governments; a mode which might become absolutely essential to the existence of the nation in time of war with a great maritime power. Our judicial annals do not afford an instance of a more unpatriotic subserviency to the demands of the rich and powerful classes. Within a few months after it was rendered the country was treated to an object lesson of what its effects might be in case of war with England, which seemed prossible, over the Venezuela question. If such a decision had been rendered in the midst of such a war-a thing which we cannot suppose possible-public opinion would have universally stamped the concurring judges, not as judges and patriots but as marplots and traitors. The gross vice of the decision lies not in the fact, that it decided the income tax law to be unconstitutional, but in the fact that it assumed jurisdiction to decide the question, one way or the other. Beyond all question, the power of raising revenue, to provide for the ordinary expenses of government, or for the common defence, or for the general welfare of the United States, was intended to be lodged as a political matter, in the political and administrative departments of the government, and it was never intended that the judicial department should be allowed to interfere with it.

The Sugar Trust decision, in effect, denied the power of Congress to prevent all the corporations in the Union, which were engaged in the production of a particular article of food, and of prime necessity, from combining together into one organisation, for the purpose alone of suppressing competition in selling, and thereby controlling the markets of that product in every State in the Union, for the scarcely candid reason that they were primarily engaged in manufacturing, and not in interstate commerce; when in fact they were engaged, primarily, in selling, and manufacturing was merely a preparation for selling.

In the Stanford case it appeared that the United States, desiring to aid in the building of a transcontinental railway, agreed to lend its aid to certain co-adventurers, provided they should incorporate themselves under the laws of the State of California, and proceed, with the aid so furnished them, to build a section of road. The constitution and statute law of California provided that the stockholders of corporations in that State should be originally liable, each for his proportion of the debts of the corporation. It seemed the simplest of all legal propositions that the

liability so established against the stockholders would inure to the public, as well as to a private creditor. And yet three Federal courts in succession held, without any dissent, that this security did not inure to the benefit of the United States; and in this way struck down the rights of the United States in favour of the rankest of public criminals. These are but a few instances; it is to be regretted that the list could be greatly extended.

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Nor has it escaped attention that some decisions of that court, which are pointed to as landmarks of constitutional interpretation and bulwarks of public right, have been rendered in the assistance of fraud, rascality, and criminality. The first judicial declaration that a public grrant is a contract, and hence not subject to legislative repeal under the constitution of the United States, was rendered in a case where a great public land grant has been procured from a legislature by direct and notorious bribery. The court having, in the same decision, held that legislative acts cannot be impeached for fraud, established the doctrine that the most important of all contracts can neither be repealed by legislation nor impeached for fraud, and thus public fraud, bribery, and corruption were surrounded with a halo of sanctity, and endowed with immortality. The much-vaunted slaughter-house decision supported, under the guise of upholding the rights of the States, an odious monopoly in the hands of one of the most corrupt combinations that ever procured a great and exclusive franchise by bribing a negro legislature. It is equally unfortunate that the case of Kilbourn v. Thompson, to which I have already referred, in which, overruling its previous sound and wholesome decision, the court denied the power of the national House of Representatives to punish for contempt a witness who, without claiming any constitutional exemption, refused to answer questions propounded to him by a committee of the House, and afterwards by the whole House, degrading that body to the position occupied by the Assembly of Newfoundland, and other British Colonies, and denying to it the right existing in the House of Commons of Great Britain from time immemorial. The result of the decision was to suppress a Congressional investigation into a fraudulent and corrupt combination, known as the "Real Estate Pool," formed in the district of Columbia, to make money out of public contracts. Nor has it escaped animadversion that it was the case of a Republican court curtailing the powers of a Democratic House of Representatives. Nor can one suppress amazement at the effrontery of a judicial court attempting to decide, over the heads of a House of a sovereign legislature, the proper scope of a legislative investigation—a subject, from its very nature, beyond the conusance of any court of justice, especially of a petty local court like the Supreme Court of the district of Columbia, and, subject to the constitutional rights of the citizen, within the absolute discretion of the Houses of Congress. A decision of three Federal judges, at circuit, smothered a Congressional investigation into the frauds of the incorporated criminals. called the "Central Pacific Railroad Company," on the specious pretence that a Congressional investigation was not a case " within the meaning of the judiciary clause of the Federal Constitution; a doctrine which the Supreme Court of the United States has since been obliged, in substance, to overrule. In Stanford's case, to which I have already alluded, the Supreme Court, in effect, exonerated the same public criminals from repaying to the Government the money which they had plundered from it. In the Counselman case, the court struck down that clause of the Interstate Commerce Law, compelling officers of interstate transportation companies to testify concerning violations of the statute, and exonerating them from criminal prosecution by reason of any disclosures made; holding that the bare possibility that their testimony might furnish a clue, by means of which a detective might discover in them the commission of some other crime, protected them under the Constitution. The subsequent statute, protecting the witness from prosecution for any similar offence, designed to afford a complete protection to him, was but recently sustained by a bare majority of the court. Such decisions, though rendered by learned and upright judges, strike the lay mind as being too complacent toward corporate rascality, and support the now widely-prevailing belief that there is in this country too much constitutional law for rogues and criminals. When the Constitution was framed, the new government which it created was not to go into existence until the constitution had beer. ratified by three-fourths of the States; nor could it be amended except with the consent of three-fourths of the States. English publicists have not failed to observe, again and again, that this has the effect of putting our government into a straight jacket. In the 106 years which have elapsed since the constitution went into effect, but fifteen amendments have been added to it. Twelve of these followed soon after the adoption of the original instrument, and the other three followed as the fruits of the great Civil War. The fourteenth of these amendments never was adopted in accordance with the requirements of the Constitution. If we lay out of view the fact that several of the Southern States governments were under military coercion, it is to be observed that the ratification of the State of Ohio, which was necessary to complete the requisite threefourths, was withdrawn before the quorum of three-fourths had been filled up. It then became a question whether a State could withdraw its ratification. It is believed to be a rule of law that, in making a multipartite contract, which requires the consent of a certain number before it is binding, any party can withdraw his consent before the requisite number of consents has been obtained. Nevertheless, Mr. Seward, as Secretary of State, decided that Ohio could not withdraw its ratification; and he accordingly issued his proclamation declaring the amendment ratified. I am using this instance to point out the extreme difficulty of amending the constitution in accordance with its own provisions. So great is this difficulty, and so great is the conservatism of the people in regard to any innovation upon that venerable instrument, that it may be regarded as hopeless to add any further amendments to it, however useful or necessary,. by the consent of the legislatures of three-fourths of the States, until some great public convulsion, or revolution, has prepared the public mind for