« PreviousContinue »
prolongation of its visit, would remain the same if such States as Corea and Tunis—not to speak of Siam—had absolutely no rights at all. And the most narrow interpreters of the scope of International Law will scarcely refuse to these nations the right to exist. To turn to the other side of the question, foreigners who visit a strange country have usually the option of remaining at home; they go, as a matter of fact, prepared to take the risks of travel and those of residence in a land of unfamiliar customs and uncertain tranquillity; or, if they rely on their knowledge of the place, and on their own favourable opinion of its safety, they can blame themselves alone, if their opinion turns out to be incorrect, and their knowledge limited. Such residents abroad have probably some idea that their own Government will do what it can to induce the authorities of the foreign State to treat them fairly, but they cannot expect that it will furnish them with direct protection by the use of force in the actual territory of the latter. As to the protection of consulates similar remarks apply. These offices are, to a large extent, mere business agencies, and no harm can be done to them so serious as to justify the step of taking the duty of protecting them out of the hands of the territorial authority. The risk of confusing the limits of State jurisdiction which arises when organised bodies of foreign troops take it upon them to enforce order in a disturbed district, makes the advantages of such a proceeding seem small in comparison. The immediate effects of the presence of the force may be beneficial, but the ultimate results are anarchic. Besides, foreign detachments might work without objection, under the supervision and at the orders of the executive authorities of the place. In this case they might be accompanied by the latter, or in some other open way make it clear that their action is 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
IV.–MASTERS IN THE CHANCERY DIVISION OF THE HIGH COURT, .
T 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 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 praceptores (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. There were, 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.
W. P. PAIN.
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