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how these doctrines are received in this country when the Congress, proposed to be held by the Association, meets in London in june next. We observe that the Association appears
to have some idea that it may become the recognised translating body of the World. This is a considerable ambition. \Vhether authors and publishers will be satisfied to hand over the right of translation to the International Association is a question which time alone can solve. Meanwhile, the first number of its “ Bulletin” (for which we are indebted to the courtesy of Mr. Blanchard jerrold, the Correspondent in England of the International Literary Association) is well deserving of careful perusal.
The urgent necessity for amendment of the Bankruptcy Laws is shown by the following memorial which has been forwarded by the leading bankers and merchants of the City of London to the Earl of Beaconsfield :—
“ The Memorial of the undersigned Bankers and Merchants of the City of London
“Sheweth,—That your memorialists are, and have been for many years, largely engaged in banking and commerce, and by reason of the extent and character of their transactions, have had ample means of observing the effect of the Bankruptcy Act of 1869, both as regards creditors and debtors; and your memorialists have to represent to your Lordship and the Government of which you are the head, that the experience of every year adds largely to the body of disastrous effects, which show that the speedy amendment of the Act of 1869 has become one of the most urgent necessities of the time, both in the interest of the mercantile class, and for the maintenance of that high tone of commercial morals and honour for which this country has been distinguished. The defects of the present Bankruptcy Law may be shortly stated as follows :-1. It affords new and vicious facilities to insolvent persons to escape from the reasonable control and supervision of their creditors, by private arrangements wholly beyond the jurisdiction of any public court or judge. And by reason of these facilities it is the fact that every year there is an increasing number of cases in which the grievous and dangerous scandal is exhibited of men failing for vast liabilities and finding it easy, in consequence of the defects of the present law, to get their speedy discharge by the payment of no dividend, or a dividend of some small fraction of a pound, or even shilling, and without being subjected to any efficient investigation of their affairs, or of the conduct and proceedings which have led to their insolvency. 2. That the present law is rendered practically nugatory, by leaving to those who have already incurred losses the investigation of the bankrupt’s affairs; and has laid upon them the obligation of exposing the misconduct of bankrupts, which, in theplain interests of public morality and commercial policy, should be dealt with not as a private matter, but by a public court and judge. Experience has amply proved that reliance on creditors to perform these onerous and costly functions is entirely futile. The Bankruptcy Act of I861 did contain in Clause I59 provisions for the interference and action of the Court in all cases of misconduct on the part of the bankrupt, with a view to his exposure and punishment; but in consequence of the failure of legislation to provide an efficient court and judge, these most salutary provisions were never enforced. 3. That owing to the rapid growth and increasing complexities of modern business, as carried on by private partnerships and joint stock companies, limited and unlimited, English and foreign, it has become perfectly clear that until there is established a Court of Bankruptcy under the presidency of a judge distinguished as a mercantile lawyer, and free to give his whole time and attention to the administration of his court, it is impossible that insolvent debtors can be adequately dealt with by means of public judicial process, and the estates appertaining to them expeditiously and economically distributed. The same remark is applicable to the winding-up of joint-stock companies—a branch of insolvent business of increasing extent, and unfortunately of increasing notoriety for scandals and failures of justice. Your memorialists desire to represent that, in their opinion, great public advantage would arise by the assignment to the efficient court and judge—which they respectfully but earnestly recommend—not only of the insolvency business arising from the failure of private persons and firms, but also arising from the failure of joint-stock companies, as well as from the estates of deceased insolvent debtors. Your memorialists are sensible that your Lordsl1ip’s Government, represented by the Lord Chancellor and the Attorney-General, did, in the last three Sessions of 1876, 1877, and 1878, present to Parliament Bills for the Amendment of the present Bankruptcy Law. These Bills were from various causes prevented from becoming law; and your memorialists now respectfully, but very earnestly, urge upon your Lordship that the Bill of I878with such additions as may be necessary to cure effectually the defects set forth in this memorial—be reintroduced at an early period of the coming Session, and that the passage of the Bill be made a leading Government question."
I.—ON THE TREATY-MAKING POWER OF THE CROWN: “ LE PARLEMENT BELGE.”
A QUESTION of no ordinary interest to jurists, and of the gravest importance to the Prerogative of the
British Crown, has recently been raised in the High Court of Admiralty of England, and has been decided by the learned judge of that Court upon considerations of Municipal Law, in a matter in which it has been hitherto supposed that the ratio decidendi was to be sought for exclusively in the cardinal principle of International Law, embodied in the maxim “Pacta sunt Servanda.” It is fortunate, on this occasion, that the chair of Lord Stowell is occupied by a jurist, of whose familiarity with intricate questions of International Law no doubt can be entertained. His decision, however, in the present case, has been influenced, according to his own declaration, by a peculiar interpretation of an Act of Parliament, which does not seem to have ever suggested itself to his learned predecessor, Dr. Lushington, whose respect for Constitutional Law was so profound, that it might be said to have amounted almost to a superstition. Dr. Lushington, nevertheless, on more than one occasion, within the personal experience of the writer, under circumstances of almost identical character with those of the present case, refused to allow process to issue from the Admiralty Court, and summarily disposed of the application in the negative, in deference to the immunity from civil process of the Belgian mail packets, as Crown vessels. A blot, however, according to the old adage, is not a blot until it has been hit, and the present learned judge of the High Court of Admiralty has observed, in the course of his judgment, as reported very fully in the Shipping and Mercantile Gazette of Monday, March 17th, I879, that the case, as presented to him on argument, was a case primes impressionis, and which was to be decided upon general principles of analogous law, rather than after any direct precedent.
The case, as reported in the above Gazette, was of this nature: The owners of the British steamtug Daring had served a writ on board the Belgian steamship Le Parlement Belge, under which they claimed the sum of £ 3,500 for damages arising out of a collision, which had occurred between the steamtug and the steamship, off Dover, on February 14th, 1879. In deference to the writ, an appearance was given on behalf of the Belgian steamship, but the agent who appeared for the steamship seems to have taken no further steps in the matter, and the plaintiff was
allowed to proceed by default, according to the practice of
the Admiralty Court. In due time, after the usual defaults, the plaintiffs gave notice in the Admiralty Registry that they would apply to the Court for judgment against the steamship, and for a warrant to arrest her. This proceeding would have been in strict accordance with the practice of the Admiralty Court, the suit of the plaintiffs being in the nature of an aciio in rem, a proceeding unknown to the Common Law of England, but well known to the Civil Law, which is the foundation of the Admiralty procedure. The arrest of the ship would have been followed in due time by its sale under an order of the Court, and by the payment of the plaintiff ’s damages out of the proceeds of the sale. Under these circumstances the learned judge of the Admiralty Court, having satisfied himself by an examination of the papers, that the arrest of the ship and the judgment prayed might affect the Prerogative of the British Crown (we quote from the same Gazette), and its relations with a foreign State, directed a communication to be made to the proper oflicer of the Crown, in case the Crown should think fit to direct cause to be shown against the prayer of the plaintiffs. The Attorney-General accordingly appeared on behalf of the Crown, and filed what was called an information and protest, a document of a somewhat anomalous character, but which served the purpose of bringing formally to the judicial cognisance of the Court two capital facts: first, that the Belgian steamship was a public vessel of the Belgian Government, sailing under the pennon of the King of the Belgians, and under the command of an officer of the Royal Belgian Navy holding a commission from the King of the Belgians and in the pay of his Government; and, secondly, that at the time of the collision the said steamship was employed, as a Belgian mail packet, in conveying the public mails from Ostend to Dover, in accordance with the provisions of a Convention concluded between Her Majesty and the King of the Belgians, under which the Belgian mail packets are entitled within British ports to be considered and treated as vessels of war. The document concluded with a protest on behalf of the Attorney-General “ that the Admiralty Court had no jurisdiction to entertain the suit, and that the plaintiff could not prosecute the same therein.”
The learned judge of the Admiralty Court, at the commencement of his judgment, expressed his opinion that two questions were raised by the Attorney-General’s protest, one being a question of International Law, and the other a question of Constitutional Law; the first resting on the general ground that the steamship was the property of the King of the Belgians and was at the time of the collision under his control and in his employment as reigning Sovereign of the State of Belgium, the other resting on the
special ground of a Postal Convention between the two