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all alike saturated with the rules of evidence hammered out by their predecessors in the course of centuries, to become in their hands instruments of precision and of justice.

No reflection is here intended to be cast upon those gallant soldiers who compose Courts-martial. Courts-martial for the trial of military offences committed by military persons are, apart from the necessity of war, the right and proper tribunals. It is unfortunate that Martial law has even in the Courts been used in a loose sense. The law administered by Courts-martial is Military law, applicable to military persons and to them only. Martial law, strictly speaking, has ceased to exist. It was the law formerly enforced by the Court of the Constable and the Marshal which lapsed in the reign of Henry VIII. Martial law is used in modern parlance for the law enforced by the military or other authority during a state of war, when the law of the land is in abeyance or is insufficient to meet the emergency, and it is enforced upon all classes alike, military and civil. Its justification lies in the maxim Salus populi suprema est lex. It does not depend upon the royal prerogative; it does not specially appertain to military as opposed to civil authorities; and it can only be justified by necessity. No evidence of such necessity has yet been adduced.

On the 6th January a Bill to amend the Defence of the Realm (Consolidation) Act, introduced by Lord Parmoor, was read a first time in the House of Lords. Its terms are somewhat wider than Lord Loreburn's amendment:

“No person not at the time of the alleged offence subject to military law within the meaning of the Army Act 1881 who has committed, or who is alleged to have committed, any offence which is punishable by the law of England, and is within the jurisdiction of the Criminal Courts, shall be liable to be tried for such offence under the Defence of the Realm (Consolidation) Act 1914, or any Act incorporating, amending, or repealing that Act, or any regulations thereunder."

On the following day Lord Loreburn asked the Marquess of Crewe whether the Government intended to propose an amendment to the Act, so as to enable British subjects to require a trial before the ordinary Courts when available. The Marquess having replied that such was the Government's intention, Lord Curzon intervened, with the observation that he had consulted Lord Lansdowne as leader of the Opposition, and he should not like Lord Loreburn to go away with the impression that because the Government would introduce such an amending Bill it would thereby pass into law.

There the matter rests for the moment. This is not a mere academic dispute. It is the most serious question of constitutional law which has arisen since the settlement of this very point by the Petition of Right in 1628. The issue before the country is whether the Common law is to be supreme, or the Army Council. By consenting to introduce an amending Bill, the Government has acknowledged its error, but in view of the attitude of the leader of the Opposition above indicated, the prospect of placing this measure on the Statute Book is not too hopeful. It is the more incumbent, therefore, upon all those who see in the supremacy of the Common law the only sure protection for personal liberty, to assist the Government in its attempt to retrieve the situation to the utmost of their power. At the present moment, the Common law lies under the iron heel of militarism, a militarism of the same genus as that which we are endeavouring to destroy on the plains of Flanders. Once let militarism gain the upper hand in her conflict with the Common law, war or no war, it will tend to grow to the same evil proportions which it has attained in Germany. Let us not allow this subordination of the ordinary Courts of the land to military tribunals to remain a precedent for the not distant future. The clouds of labour troubles still darken the sky, and but for the Great War, would have already burst upon us. That way lies revolution.

1 It is significant that in Austria, where executions of civilians in pursuance of sentence by courts-martial are taking place, a popular agitation has arisen protesting against such mode of trial, and demanding that civilians should be tried in the Civil Courts.

Hugh H. L. BELLOT.

III.-SALES “ WITHOUT RESERVE."

W

HEN an auctioneer advertises a sale as being “with

out reserve," does he thereby bind himself to knock down the property to the highest bonâ fide bidder? It has been customary to answer that question in the affirmative by simply referring to Warlow v. Harrison, but this sum. mary solution does not seem to be wholly satisfactory.

In the first place we must observe that Warlow y. Harrison is not actually a decision upon the point at all. What happened in that case was that a horse advertised for sale “ without reserve ” was bought in by a bid made on behalf of the vendor, and the highest bonâ fide bidder thereupon sued the auctioneer for breach of contract. The declaration alleged that the defendant became the plaintiff's agent to complete the sale, and the defendant's third plea was a denial of this agency. Upon this plea the Court of Queen's Bench entered judgment for the defendant, holding that the agency could only arise upon the formation of a contract between vendor and purchaser, and that in this case no such contract had ever existed. Upon appeal to the Exchequer Chamber the Court affirmed the judgment upon the pleadings as they stood, but expressed an opinion that upon an amendment of the pleadings the plaintiff might succeed. In the course of their judgment three of the judges expounded the theory for which the case is cited, namely, that the auctioneer made an offer to knock the lot down to the highest bidder, and that this offer was accepted and turned into a contract by the highest bonâ fide bid being made. The other two judges, while agreeing in the conclusion, rested their opinion on the ground that the defendant professed an authority to sell without reserve which he did not in fact possess. In the result the judgement of the Court below was affirmed, but the plaintiff was given leave to amend his pleadings and proceed to a new trial, unless the parties could agree to enter a stet processus. This last course was the one actually adopted, and so there was then an end of the case.

* (1858), 1 E. & E. 295; 117 R. R. 219. Sir Frederick Pollock, however, speaks more guardedly than other text-book writers.

Passing now to the later history of the matter, we find dicta expressing more or less approval of Warlow v. Harrison in four cases coming down as far as 1899;1 but in none of these was it actually necessary to decide the point we are now discussing. On the other hand we have a considered judgment of the Court of Queen's Bench, in which the judges are at pains to point out that the opinions expressed in Warlow v. Harrison are not conclusive of the matter, which therefore remains an open question. In this case the

2 property was offered for what was called a "peremptory sale,” with an intimation that further particulars might be obtained on application to the vendor's solicitor or auctioneer. No reserve price was mentioned until the bid. ding was in progress. The plaintiff made the highest bid, but since he fell short of the reserve the lot was withdrawn. The action was brought against the auctioneer, and the plaintiff relied on Warlow v. Harrison. The Court gave judgment for the defendant on the ground that he was acting merely as an agent for a principal whose existence

Spencer v. Harding (L. R. [1870], 5 C. P. 561, at 563); In re Agra and Master. man's Bank (L. R. (1867), 2 Ch. App. 391, at 397); Harris v. Nickerson (L. R. [1873], 8 Q. B. 286, at 288); Johnston v. Boyes (L. R. [1899], 2 Ch. 75, at 77).

Mainprice v. Westley (1865] 6 B. & S. 420.

1

was disclosed. But in the course of the argument Blackburn, J., remarked (at p. 424) :

“ The view that the auctioneer [in IVarlow v. Harrison] made a contract, was first started by three judges of the Court of Error, and was not adopted by the other two : the judgment of the Court was not that the plaintiff should recover, but that he might amend in conformity with the opinions of the majority in order that the question might be raised : so that we have three judges of the Exchequer Chamber against three judges of

this Court." Again, in delivering the judgment of the whole Court for the defendant, he pointed out (at p. 429) :

“We do not think, therefore, that we are precluded by this, as a judgment of a Court of Error; and, if necessary, we should be at liberty to consider the question whether, even in the case where the name of a principal is not disclosed by an auctioneer, there is a contract by the latter such as is now insisted on. My Lord and my brother Shee are of opinion that there is not .... I myself should pause before deciding on this ground. I do not, however, wish to express dissent from the view thus expressed ; and we are all of opinion that it is unnecessary to decide this point. The three judges who formed the majority in Warlow v. Harrison based their opinion entirely on the fact that the vendor was not disclosed, that he was a concealed principal; but in the present case the passages in the handbills

showed that the defendant was acting for a principal.” It would seem, therefore, that the case law on the subject does not supply us with any conclusive answer to our question. Certainly there is nothing to warrant the dogmatic assertions which appear in some text-books on the authority of Warlow v. Harrison. But since the date of these decisions we have had the Sale of Goods Act of 1893, in which the law is laid down in these terms (sect. 58, sub-sect. (2)) :

“A sale by auction is complete when the auctioneer announces its completion by the fall of the hammer or in other customary manner. Until such announcement is made any bidder may retract his bid."

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