sion of the weak. And the courts have been uniformly vigilant, where the peace and quietude and justice of the country are regarded, not only in enforcing their penalties but in declaring void all contracts made in derogation of their provisions. If the contract contained any stipulation on its face, in derogation of their provisions, we should find no difficulty in treating it as a nullity, and refusing all aid from the law and the courts in enforcing it, or any stipulation in it, however, lawful."

The substance and effect of the decision of the court in this case, and the language used by the court, after having delivered itself of this decision, are here cited as a vivid illustration of what the law books style differentiation; in other words, the court in that case, which seems to be the parent case in Kentucky on the subject, with extraordinary lucidity of expression differentiates a contingent fee providing that an attorney may accept an amount equal to one-half the value of the thing sued for, from a contingent fee providing that an attorney shall receive for his services one-half the thing sued for. The "odious species of maintenance" as defined by the court in that case, consists in the litigant agreeing to pay, and the lawyer agreeing to receive, a part of the actual thing in controversy, as compensation for his services, instead of the litigant agreeing to pay, and the lawyer agreeing to receive, as such compensation an amount equal to a certain percentage of the value of the actual thing in controversy. Whether this is a distinction without a difference is no longer an open question in Kentucky, as our court of last resort has decided that is not.

This case was expressly opproved by the Court in Ramsey v. Trent, 10 B. M. 336, decided in July, 1850, Chief Justice Marshall delivering the opinion of the Court. Judge Marshall uses this language in citing with approval the Wilhite case:

"The contract in that case is contained in the following words: 'Now if the said Rudd and Roberts shall succeed in recovering possession of said lot of ground on the demise aforesaid, then I obligate myself to pay them to the amount of one-half of the value of the above-mentioned ground.' The court was of the opinion that this was not an agree

ment to give part or profit out of the thing in contest, and, therefore, not champertous. And it further said in that case that the litigant might regulate his attorney's fee by the value, or one-half the value, of the property in contest, as well as by the value of any other property. The only material difference between the contract then before the court, and that now under consideration consists in the fact that in the present case the attorneys are to wait for their fee until the employers sell the land. All else relates merely to the quantum of the fee. The terms of the contract show that the fee was to be regulated by the value of the recovery compared in a certain manner with the costs and expenses. It does not show that the attorneys were to have part or profit out of the thing in contest, or that the contract was made in its actual form in order to secure to them such part or profit in evasion of the statute. The contract, therefore, is not, in our opinion, champertous within the statute, and the plea should have been adjudged bad on the demurrer."

These two decisions are to the effect, that if the client has $10,000.00 on deposit to his credit in the National Bank of Kentucky, and also has $10,000.00 standing to his credit in the National Bank of Commerce, and becomes involved in litigation affecting the money in one of these banks, he will be permitted to contract with his lawyer to pay him one-half of the deposit in the other bank, as compensation for his services, in the event of success, or he may agree to pay him a sum equal to one-half of the $10,000.00 actually in controversy. To agree to pay one-half of the $10,000.00 in suit, is champerty. To agree to pay one-half of the $10,000.00 not involved in the suit, is not champerty. This reasoning reminds one of Gilbert A. Becket in the Comic Blackstone, when he states that when an act of Parliament is repealed, and thereafter the repealing statute is repealed, the repealed act is thereby revitalized and put in operation, on the theory that if "A" kills "B" and "C" kills "A," "B" is thereby instantly restored to life.

I feel perfectly unafraid thus to animadvert upon these two decisions of our court of last resort, for the reason that I am sure I am not in contempt of the court in doing So. The judges who delivered these opinions have been dead for many years, and besides, the Court of Appeals is not now in session. These two opinions, however, have

long been a source of profound interest, not unmixed with amusement, to many lawyers of this State. In any effort to analyze the reasoning of the Court, as exemplified in these judicial utterances, the most acute intellect will stagger and grow faint. That the Legislature of Kentucky, by the passage of the Act of 1824, intended to prohibit the common law of offense of champerty, that this statute was designed to be declaratory of the common law on that subject, no one will gainsay. The history of the enactment and the abuses which inspired its adoption, as well as the singularly concise and lucid phraseology employed in its preparation, very clearly indicate this. It is the opinion of some very eminent lawyers, who admire and revere the memories of both Ewing and Marshall, on account of their great learning, that the doctrine laid down by Ewing nearly a century ago, and approved by Marshall a quarter of a century thereafter, and which obtains in Kentucky today, is intrinsically unsound and unsupported by either reason or authority.

The retainer and the "refresher" are forms of compensation which have been developed by the exigencies and complexities of modern professional life. Both are innovations. Of the retainer, nothing need be said; but the "refresher" has some instructive and entertaining features not unworthy of mention. This fee originated in England. It made its first appearance upon the trial of the celebrated case of The Queen v. Thomas Castro. This prosecution grew out of the famous Tichborne case, wherein Arthur Orton, alias Thomas Castro, undertook to establish his right to the vast estate of Sir James Tichborne. Upon the inglorious collapse of this civil suit, Orton was indicted for perjury and Mr. Kenealy, a London barrister, defended him. His speech to the jury on that occasion lasted six weeks. During the progress of this extraordinary argument, he was frequently regaled with "refreshers," a species of compensatory stimulant designed to give him strength to stand the strain. The record does not disclose the exact

character of these intermittent gratuities or honoraria, and posterity will never be sure whether they consisted of flagons of grape juice, imported from Nebraska, or rare gems of purest ray serene from Ceylon and Cathay.

WILBUR F. Browder.

RUSSELLVILLE, KY.

THE ENGLISH CONSTITUTION.

What I hope to accomplish by this address is to bring before you a picture-necessarily in outline of the Government of the British Empire. It is sometimes said there is no such thing as the British Constitution. This, however, is obviously untrue. I begin by quoting as follows from Professor Dicey's Law of the Constitution:

"Constitutional law, as the term is used in England, appears to include all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the state. Hence it includes (among other things) all rules which define the members of the sovereign power, all rules which regulate the relation of such members to each other, or which determine the mode in which the sovereign power, or the members thereof, exercise their authority. Its rules prescribe the order of succession to the throne, regulate the prerogatives of the chief magistrate. determine the form of the legislature and its mode of election. These rules also deal with Ministers, with their responsibility, with their spheres of action, define the territory over which the sovereignty of the state extends and settle who are to be deemed subjects or citizens. Observe the use of the word 'rules,' not 'laws.' This employment of terms is intentional. Its object is to call attention to the fact that the rules which make up constitutional law, as the term is used in England, include two sets of principles or maxims of a totally distinct character.

"The one set of rules are in the strictest sense 'laws,' since they are rules which (whether written or unwritten; whether enacted by statute or derived from the mass of customs, tradition, or judge-made maxims known as the Common Law) are enforced by the Courts; these rules constitute 'constitutional law' in the proper sense of that term, and may for the sake of distinction be called collectively 'the law of the constitution.' The other set of rules consist of conventions, understandings, habits, or practices which, though they may regulate the conduct of the several members of the sovereign power, of the Ministry, or of other officials, are not in reality laws at all since they are not enforced by the Courts. This portion of constitutional law may, for the sake of distinction, be termed the 'conventions of the constitution,' or constitutional morality.

"To put the same thing in a somewhat different shape, 'constitutional law,' as the expression is used in England, both by the public and by authoritative writers, consists of two elements. The one element here called the 'law of the constitution,' is a body of undoubted law; the other clement, here called the 'conventions of the constitution,' consists of max