Page images

subject to their controlling direction ; for instance, by making frequent reports to them, or by displaying the national cockade. Upon this suggestion, however, the question arises whether such a loan of troops would be legal if made to a State which happens to be at war with another; and the point may at the same time be considered whether an unasked landing of troops for the suppression of disturbances is compatible with the duty which the Government which takes such a step owes to abstain from affording military assistance to the enemies of the State in the dominion of which the disturbance has arisen,

The problem is essentially the same in either case. If the interference of the neutral was unasked it is more likely that the step was not taken out of an unfriendly spirit to the other belligerent; but this is not a matter of any importance, for a State is bound not to assist another which is at war with a third.

Whether these considerations have any bearing upon the events at present occurring in South-Eastern Europe, it is not intended here to discuss. The fundamental position of the existence of war between Greece and the Porte is itself matter for a volume. The present paper is only directed to pointing out two sources of danger which may become serious if steps are not taken to settle the law in their regard.

TH. Baty,




HE change of the designation of the officials known as

the chief clerks into the older title of Masters, will probably, looking at the history of the substituted title, not be received with unmixed feelings of satisfaction, yet it is most likely intended thereby to convey to the public that the holders of the title are in only a limited sense clerks; while, like the somewhat similar officials, the Masters in the Common Law Divisions," the old faces under a new name,' exercise a jurisdiction of much importance to the suitors entitled to the property valued at many millions of pounds, which, as the expression is, is “in Chancery.” One difference between the new and the old “Masters" is unquestionably that while, at any rate during the later period of their existence, the former Masters were barristers, the chief clerks have been invariably selected from the solicitors' branch of the legal profession.

“The man in the street” has, generally speaking, been rather nebulous as to the principles, officials, and procedure of the equity side of the Courts, but a reference to its history shews that the Masters have attracted a considerable share of public attention, and, it must be confessed, that the reasons for the interest of the public in the office have been little creditable to the holders of it, or to those having authority to confer it upon them. Its history is one, however, commencing in remote antiquity. The assertion has been made, whether on reliable authority may perhaps be doubted, that the earlier Masters advised the Saxon Witan and the Council under the Normans and earlier Angevin sovereigns of the country. Coming to a later period and more dependable authority it may be stated that all

There were,

writs for the commencement of legal proceedings were issued from the Office of the Chancery, i.e., of the Lord Chancellor, and, to assist him and furnish the appropriate writs to the suitors, a certain numbers of clerks, called præceptores (afterwards Masters), who were the king's officers, and took an oath for the due performance of their duties, were, according to Mr. Spence's “ History of the Rise of the Court of Chancery,” appointed. They were invariably ecclesiastics, Doctors of the Civil Law. in addition, other clerks belonging to the Chancery, known as the Six-Clerks, who, temp. Edward III., issued the writs of course (de cursu), and had acquired the name of Cursitors,hence the name of the street to the east of Chancery Lane;an office abolished in 1843. Chief among the Masters was the clerk or Custos of the Rolls, an office which has survived with great, independent, judicial and other authority until the present time. Some of these Masters for a long course of years sat upon the Bench with the Lord Chancellor for the purpose of giving advice with reference to the case being heard if applied to. The Masters were, after the reign of Edward IV. until the Lord Chancellorship of Lord Brougham, appointed by the Chancellor placing a velvet cap on the head of the official to be appointed. Lord Keeper Coventry, in the reign of Charles I., issued a series of orders for reforming abuses in the Court of Chancery, the most important of which related to the Masters' offices, and after the South Sea Bubble in 1720, it was found that many of the Masters in Chancery had, to indemnify themselves for sums paid for their places, speculated in that scheme with the suitors' trust-money in their hands; the deficit being found, according to Lord Campbell, to amount to more than £80,000. Lord Macclesfield's fine of £30,000 was applied to make up a part of this sum, the remainder being recouped by a temporary tax on proceedings in

the Court. Finally, in 1852, the office of Master in Ordinary was abolished, except so far as related to proceedings then before them, as to which it has been said that, if it was necessary to sacrifice a Jonah to the whale of popular opinion, probably the most suitable victims were selected. The Chancery Judges were at the same time authorised to appoint chief and junior clerks for the purpose of assisting in the general business of the Court, and the Judges order what matters shall be investigated by their chief clerks, either with or without their assistance. The system upon the whole has worked well, but it may be doubted whether the framers of the change contemplated business of such magnitude as at present being transacted by the officials then appointed.


V.-A QUESTION OF LEGITIMACY. THE question which I propose to consider will probably

seem to many to be of little practical importance for two reasons: the first, that the peculiar combination of facts on which it can arise is not, in the nature of things, likely to happen often; the second, that the state of authority on the point is such as in all probability to deter a person interested in challenging the correctness of that authority.

The question, shortly stated, is this :-A., a person domiciled in a country where the doctrine of legitimatio per subsequens matrimonium obtains, marries B., who has had, before the marriage, a child, C., by him. At the time of the conception and birth of the child, A. was domiciled in England, or some other country where the doctrine above referred to does not prevail. Will the English Courts

hold C. to be legitimate or illegitimate? The question is to be dealt with as uncomplicated by any international difference of view as to the nature of the marriage contract, or the capacity of parties to contract it, and the intercourse resulting in the birth of the child is postulated as having taken place inter solutum et solutam.

The point seems to have arisen only once in England for direct decision-in In re Wright's Trust, 2 K. & J. 595 ; 25 L.]. Ch. 621 (1856, Wood, V.C.)—though it has on several occasions been the subject of judicial dicta. I think it is not rash

to say that before the case last mentioned such authority as existed on the point was in favour of the legitimacy of C., that the learned Vice-Chancellor failed to observe that this was so when he decided against the legitimacy, and that the later dicta, which are all in favour of the ViceChancellor's view, were uttered on occasions when the precise point neither needed nor obtained a critical investigation. Let us take first the history of the question before the case of In re Wright's Trust; it will, I think, be found to lie in very small compass. I have not found any case, Scotch or English, in which the question was even indirectly dealt with, of earlier date than 1840, when the Scotch cases of Dalhousie v. McDouall, 7 Cl. & F. 817, and Munro v. Munro, Ib. 842, were disposed of by the House of Lords (Lords Cottenham, L.C., and Brougham).*

As Wood, V.-C., in his judgment in In ve Wright's Trust, attached much importance to the authority of the French jurists, whose meaning I think he missed, I venture to

* Cotton, L.J., in his judgment in In re Goodman's Trust, 17 Ch. D., at p. 293, professes to find something on the point and in favour of his own view in the opinion delivered by Alexander, C.B., in Doe v. Vardill, 2 Cl. & F. 571, but, with the greatest deference, I must say that I have searched that opinion carefully without finding any language which throws any light on the question or shews it to have been in any way considered.

« PreviousContinue »