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said, “had over and over again argued against mixed education.” To this Mr. Whiteside replied, “that was a mistake."
On the 11th of May, 1866, the state of the Irish Bench was brought before Parliament by Mr. Bryan, with special reference to Chief Justice Lefroy, who, he said, was then 92 years of age, having been born in 1774, and called to the Bar in 1797. He referred to the case of a man found guilty of the murder of Lieutenant Clutterbuck, in which a mistake was made by the Chief Justice in charging the Jury. He also alleged that when about to pass sentence of death upon the prisoner his Lordship forgot the words of the sentence ; and that even when it was written out for him in a large and plain hand, the nonagenarian Judge was unable to read it, so that the Attorney-General had to stand beside him on the Bench and say the words over to him. He then adverted to the Court of Appeal in Chancery, whereof the Lord Justice (Blackburne) was 84 years old. Sir Hugh Cairns and Mr. Whiteside both spoke against the motion, and Mr. Whiteside having showed that the statement as to what took place on the trial for the murder of Lieutenant Clutterbuck was not accurate, the motion fell to the ground. It turned out very fortunately for Mr. Whiteside that the Lord Chief Justice Lefroy was able to retain his seat on the Bench until the change of Government, then impending, took place. During the month of June, 1866, Mr. Whiteside spoke once on the state of Europe, and again on the resignation of Judge Longfield ; but the Parliament, which he had so often addressed with a force and energy seldom surpassed by any other member, was thenceforward to know him no more. On the 5th of July, 1866, Mr. Gladstone, Chancellor of the Exchequer, announced the resignation of Ministers, and tendered, in his own name and that of his colleagues, the expression of their gratitude to those, who with so much zeal and so much perseverance, had supported the Government. Upon the
advent of the Conservative Government to power, the nonagenarian Chief Justice of the Queen's Bench resigned, and the Right Hon. James Whiteside took his place. He soon obtained the reputation of a strictly Constitutional Judge, and though when political or religious questions arose, as in the O'Keefe v. Cullen litigation, his strong antiCatholic views sometimes appeared, he was respected by the Bar, and cordially esteemed by his three Roman Catholic puisne Judges. . We have now sketched, with considerable minuteness, the career of Mr. Whiteside at the Bar and in Parliament, and need not dwell, at any great length, upon his conduct as a Judge. He had in his Court for colleagues, during the ten years he held the chief place, very able and eminent men, Judges O'Brien, Fitzgerald, and Barry; and the Court seldom differed in its decisions, a proof of the competency of the Bench. On Circuit, as during the sittings in banco, the Chief Justice was always ready for the dispatch of business, and his manner to the Bar and suitors was kind and considerate.
Towards the spring of the year 1876 the health of the Lord Chief Justice began to show symptoms of decline, and his medical advisers considered rest indispensable. Accordingly he abstained from going the Summer Circuit, and Serjeant Armstrong acted as locum tenens. The Chief Justice then tried change of air, and resided for some time at Brighton. But here his life ended on Saturday, the 25th of November, 1876, when he was in his 70th year.
A very unanimous expression of regret attested the public sorrow for the distinguished Irishman. On Monday, the 27th of November, Mr. Justice O'Brien, the Senior Judge of the Court of Queen's Bench, Dublin, in announcing the adjournment of the Court in consequence of the death of the Chief Justice, expressed in graceful terms his own and his colleagues' grief for the loss of their eminent chief, and paid a fitting tribute of respect and regard “to the
memory of one of whose abilities and genius the country might well be proud, and whose loss they, especially, had so much reason to regret."
The remains of Chief Justice Whiteside were laid in Mount Jerome Cemetery, followed by a cortège representative of every variety of political and religious opinion, united in this mark of their attachment to his memory.
IV.-CURIOSITIES OF ENGLISH LAW.
No. 1.- RELIEF AGAINST PENALTIES AND FORFEITURES. TF Sir Samuel Romilly had lived in these days he might 1 perhaps have modified the contemptuous opinion he held of the capacity of Lord Chancellors in the matter of Law Reform. Law Reform has of late been in the 'ascendant. To have “ views” on that subject has now become a necessary constituent element of the complete lawyer. Even those treatises which only profess to impart the rudiments of legal knowledge to the youthful student, endeavour, with a courageous disregard of the mere exigencies of examinations, to instil some notion of the law not only as it is, but as it ought to be. We all dabble in Law Reform, from the Lord Chancellor to the Law Student. Whether even in these days the highest legal dignitaries are the most efficient law reformers is a question that may perhaps admit of doubt, but there can be no doubt what. ever that Lords Westbury, Cairns, Hatherley, and Selborne, and above all, Lord Justice James, have displayed much zeal in the cause of Law Reform. There is indeed some
difference of opinion as to whether the latest manifestations of judicial zeal in that direction have been altogether well considered, but no one can deny that the late sweeping enactments betoken a stirring of ideas in high places that to Lord Eldon and the worthies of fifty years ago would have seemed nothing less than portentous. While the Judicature Acts have effected a great revolution in matters of practice, the changes in substantive law have been few and comparatively unimportant. This is a somewhat anomalous state of things. Much remains to be done in the latter department of Law Reform, and the spirit of the time would seem to afford a favourable opportunity for the discussion of certain doctrines which, although established on what was once considered the firm basis of a long line of decisions, have, as we venture to think, very little except their antiquity to recommend them.
There is, perhaps, no part of our judicial system which has been more often made the subject of panegyric than the jurisdiction assumed by Equity to relieve against penalties and forfeitures. If good intentions are the only test of desert, the heroic expedients resorted to by Equity in its endeavours to enforce fair dealing between man and man cannot be too highly praised. These expedients have, however, been attended with untoward results, and we hope to show that the Legislature would act wisely in abrogating the rule of Law, which (among other evils) in many cases hinders a person from enforcing a penalty he has bargained for on the breach of a contract. It is well known that contracts are often enforced by the sanction of a penalty disguised under the name of " liquidated damages," but (as will be shown) it is only a certain class of contracts which is in practice capable of being so enforced, and the Courts might well be constrained to forego the perplexing distinction which at present obtains between penalties and liquidated damages, and to admit the broad principle that contracts may be legally enforced by the sanction of a
penalty on non-performance. It may be observed that the Legislature is in the habit of enforcing obedience to Acts of Parliament through the medium of penalties, and if a person may be called upon to pay a penalty for the commission of an act of the illegality of which he may be ignorant, it is surely no greater hardship, at all events in the absence of special circumstances, that he should be called upon to pay a penalty to which he has purported to subject himself by express contract. The decisions by which the law has been settled, when taken separately, are, it is true, sufficiently plausible, but they are not easily reconcilable. The judicial instinct has contrived, under great difficulties, to preserve a certain semblance of justice, a semblance owing its existence not to steady adherence to the dictates of an inexorable logic, but on the contrary, to the bold disregard of logic which has enabled the Judges to stop short in the middle of any syllogism threatening to lead to an inconvenient conclusion.
There is one familiar and very instructive instance of a decision that would otherwise have worked great injustice, having been rendered innocuous by means of a purely imaginary distinction, namely, the provision for enforcing punctual payment of interest on mortgages. The law on this subject is stated for the edification of Law Students by Mr. Joshua Williams, in his text-book on “Real Property,” as follows:-“A curious illustration of the anxiety of the Court of Chancery to prevent any imposition being practised by the mortgagee upon the mortgagor occurs in the following doctrine: that, if money be lent at a given rate of interest, with a stipulation that, on failure of punctual payment, such rate shall be increased, this stipulation is held to be void as too great a hardship on the mortgagor, whereas the very same effect may be effectually accomplished by other words. If the stipulation be that the higher rate shall be paid, but on punctual payment a lower rate of interest shall be accepted, such a stipulation being