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a heavy ransom for his liberty, in default of which his life would be sacrificed, because the Government of the country where he has been made a victim, professes not to be strong enough to use proper efforts for his relief, and for the due punishment of the offenders.*
Let us now pass on to the consideration of ordinary Law in Law-governed countries. The Divine Precept to "do unto others as you would that others should do unto you" furnishes the best and truest principle for the foundation of all the laws that should govern the relations of men to each other. And as every man would ask that truth, honesty, and fairness should be exhibited towards him by every other man, so he himself ought to exercise these moral qualities in his dealings with others. Experience has proved that he often does not, and the Law steps in to remedy this defect in his conduct. One great principle of good law is, that it should be equal as to all, yet there are matters in which it is not so. One of these relates to a subject that has been lately under Parliamentary discussion—the relations of Landlord and Tenant, and the implied rights and obligations arising between them. Implications of law are generally undesirable, and not the less so where the subject is one affecting the daily business of life. But the subject is too complicated for discussion at this moment though it amply deserves consideration.
In mercantile contracts implications of Law are not so readily admitted. Customs of the market are sometimes put forward as affecting a mercantile contract. But several very recent decisions have established the rule, that, in such contracts, either the party sought to be charged with the custom of a particular market, must be shown to have been personally acquainted with its existence, or that its existence should have been so generally and commonly
* See the speech of the Rt. Hon. Sir Henry Lytton Bulwer, G.C.B., de. livered 20th May, 1870, in the debate on the Massacres of English Travellers in Greece.
known to, and acted on by, all having dealings with that market, that, in all reasonable probability, it must be believed that he did know of it, and entered into his contract with that knowledge, when, of course, he would rightly be held to be bound by it.
But a more difficult case of enforcing the principle of honesty in making contracts has occurred of late years in respect to what are now called public companies.
The repeal of the law which restricted the number of partners in a company, and gave liberty to form companies with any number of partners, and subsequently the creation of a power to form companies with “limited liability" of the subscribers, gave rise to the creation of companies of all kinds. The businesses of old, in some instances of decaying and decrepit, and even of utterly insolvent partnerships, were proposed for purchase by Joint-stock Companies, and were bought; and agents, like the one mentioned in Dickens' novel, arose everywhere, prepared to commit any frauds that might inveigle the credulous to subscribe to their schemes. In too many instances, in the first outburst of the fervour for Joint-stock Companies, the credulous were the only victims—those who had betrayed, and purposely betrayed them, not only escaped, but obtained profit. It is not quite so now. But though the fraudulent concoctors of bubble Companies are by no means, even at this moment, visited as they deserve, there has been some check put upon their mendacious activity, by rendering it less profitable than it once was to frame prospectuses remarkable for little else than ingenuity in deception. No honest man can doubt that the law as to these matters ought to be made of still wider and of more direct and stringent application.*
The Law of Insurance is one which also demands attention, and recent discussions as to one of its incidents have given to that incident great prominence and importance, and raised it from the character of a matter of detail to that of a matter of principle. Respecting the antiquity of the origin of Insurance there has lately been some interesting and curious correspondence in the Press. On that question of antiquity, and of locality of origin, we will not enter. It must have originated in some feeling of the necessity for mutual support and succour. But it is not at all necessary that the idea of mutual support should have received its first application with regard to sea voyages. Land travel might have suggested it. One reference to this matter may not be uninteresting.
* Some excellent papers on this subject have been contributed to the records of the Social Science Association by Mr. Joseph Brown, Q.C.
There is at this day a relic of this sort of custom of mutual protection. A few years ago (and probably now) there might have been seen from the high hill adjoining Galatz, numbers of waggons proceeding towards that port, or moving homewards after delivering their cargoes of corn for shipment there. These waggons move in divisions varying from ten to twenty each, with an interval of a quarter of a mile between every division. This sort of arrangement must have been originally occasioned by the necessity for mutual aid and protection. By easy changes arising from time to time to suit the convenience of those who thus sent their produce to a great public market, a system of mutual insurance, by contributions of money, or the employment of guards, might have suggested itself to those who did not actually join the travelling group. Mutual insurance must have been the earliest form of insurance, and it required a great progress in the commercial habits of the world before the thought of obtaining a profit, by undertaking for payment of a premium, a great number of risks, and balancing the chances of gain or loss against each other, could have entered the head of a speculator, or would have been actually put into practice.
The idea of Maritime Insurance, whatever form it first took, having been once entertained, and the excellence of the principle admitted and appreciated, the question of course arose how it was to be regulated, and how rights and liabilities arising under it were to be adjusted. In the case of actual total loss, the proceeding was simple ; it became complex when constructive total loss came to be recognised, and still more complex when partial losses occurred, and what we now know under the name of general average took its rise. At this moment all the greatest commercial interests are debating whether the continued existence of General Average (probably the first form of maritime average) shall be permitted, and the divergence of opinion on this important subject was shown last September at Antwerp, where many of the greatest shipowners and insurers of the world were present, in person or by representation. On such a question the opinion of a Lawyer is likely to be little heeded by Commercial disputants, yet it can hardly be inappropriate for a Lawyer to suggest that the principle of general average is the principle of insurance itself. It is that of distributing among the many losses which might otherwise be the ruin of the few. The subject is not out of place here, since legal as well as commercial intelligence will be required for its settlement.
It may be well now to advert to the important subject of Wills—and, perhaps, in the first instance to the making of wills by married women, for, as to these, under certain circumstances not unlikely to happen in every day life, the principle of honesty and fairness may be sacrificed to a defect of form. The general rule is that a married woman cannot make a Will of personalty without her husband's assent. Perhaps there may be ground for this as a general rule. But in a case (Willock v. Noble, L.R. 7, H.L. 580) which recently occurred, the husband had given undoubted proof of his assent, though he could not, by independent testimony, be proved to have heard and assented to the particulars of the will in question. His own will left the widow absolute mistress of all his property, and appointed her sole executrix. She survived him only a few months, and after his death
informed the solicitor that she adhered entirely to the will she had previously executed. But she did not go through the form of making another will, or of re-executing that which already existed. The expectant heirs disputed its validity, and the rule of law was found to be that, because her will had not been re-executed after the husband's death, it was invalid as to all except her own separate settled property. There is no doubt as to the rule, but it certainly does require correction. There is another important matter connected with will-making, namely, attestation. It is a rule that every will must be attested. This is not so in Scotland, and there is no principle which requires it to be so in England. A modern Statute has corrected one mistake of the Law by putting an end to the necessity for a particular form of attestation. But it ought to have gone farther, and in the case of certain wills have required no attestation whatever. If a man writes out his own will, there can be no doubt that he must more carefully make himself acquainted with its contents, and be more clearly settled in his mind as to its provisions, than if, after giving instructions to a Solicitor, he hears read over to him the formally-drawn instrument which has been framed as the result of those instructions. And what is of still greater importance, forgery becomes in such a case almost impossible. A signature may often be, and often has been, imitated, and imitated so well as to defeat detection. But the successful forgery of handwriting covering a whole sheet of paper could hardly be within reach of practicability. And this warranty of genuineness (for it really operates as such) might be strengthened by a small matter which would give the will an official protection, as it does in Scotland and in some nations on the Continent. Into that matter we need not now more fully enter, though all must surely agree in this—that, if the making of wills is to be a recognised branch of Law, there should be every care taken that those entitled to make them may feel certain that their