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case may be, is not the husband or wife of a debtor, but of a person whom it is desirable to examine in the bankruptcy of a third person.
Taking the questions specifically put to the husband in the case which suggested this article, it may be that he could not have refused to say when and where he last his wife.* If he had
persisted in his refusal because he thought it dishonourable to say anything which might be prejudicial to her interests, it would still have been open to the Court, which has always a discretion where the liberty of the subject is .concerned, to decline to commit him for contempt. In a case of the King v. the Inhabitants of All Saints, Worcester (6 M. and S. 194), on a question of Settlement a wife was called to prove her marriage, in order to get rid of the effect of her husband's subsequent marriage with the pauper, and it was held that she was a competent witness. But Bailey J., in reference to this wife's testimony, said : “If she had thrown herself on the protection of the Court, on the ground that her answer to the questions put to her might tend to criminate her husband, I am not prepared to say that the Court would have compelled her to answer ; on the contrary, I think she would have been entitled to the protection of the Court.”
But if to the questions, “What is your wife's present address?" or “Who is her solicitor ? " the witness had replied, “I only know from what she told me at our last interview, and I decline to answer," it is conceived that the judge would have had no power to commit him to prison for this refusal to answer. It is certainly surprising that sec. 3 of Lord Brougham's Act should have given rise to so little litigation, for many persons during the last five and forty years must have been in a position to seek its protection,
* Semble in Ex-parte Campbell, supra.
It must be noticed that the old common law taint of inadmissibility with regard to evidence of this kind was finally and entirely swept away by the Act of 1853. If the persons concerned do not raise an objection to giving the evidence, the Courts no longer are bound to reject it as savouring of interest and conducing to perjury. It is by a saving clause only, a clause framed in the interests of public policy, that these persons are not to be forced to give evidence of a certain kind against their will. To use the words of the learned editor of Taylor on Evidence (8th ed. sec. 909), which words do not necessarily import a disagreement with the remarks of Erle J. referred to above: “This wise enactment rests on the obvious ground that the admission of such testimony would have a powerful tendency to disturb the peace of families, to promote domestic broils, and to weaken, if not to destroy, that feeling of mutual confidence, which is the most endearing solace of married life. The protection is not confined to cases where the communication sought to be given in evidence is of a strictly confidential character, but the seal of the law is placed upon all communications of whatever nature which pass between husband and wife. It extends also to cases in which the interests of strangers are solely involved, as well as to those in which the husband or wife is a party on the record.”
J. K. F. CLEAVE.
IV.-SUZERAINTY: MEDIÆVAL AND MODERN.
Y the Transvaal Convention of 1881 Her Majesty's
Government guaranteed to the inhabitants of the Transvaal territory “complete self-government subject to the suzerainty of Her Majesty," upon certain reservations and limitations. The conditions were fully and clearly set out, but the use of the word “suzerainty " was viewed, probably in both countries, with considerable distrust. It had an archaic and mediæval sound, and no one seemed to know quite what it meant. The settlement with the Transvaal was a subject upon which almost everyone in this country had a strong feeling, and naturally the meaning which the word, obviously used as descriptive of the future relative positions of the two States, England and the Transvaal, was intended to convey, was much discussed. That a considerable difference of opinion existed in the minds of statesmen and lawyers soon became apparent.
In the discussion in the House of Lords that immediately followed the announcement of the terms of the Convention, Lord Selborne, then Lord Chancellor, is reported to have said that “Suzerainty means that the Suzerain is lord paramount of the people who are subject to it... The control of foreign and frontier relations essentially distinguishes a paramount Power. No war can be made upon adjoining Native tribes, no treaty can be made with (foreign) Powers except by the authority of the suzerain) country inferring that the vassal State had full control over its 'internal affairs, but of those alone. The Earl of Kimberley also intimated that the word expressed the assignment to the Vassal State of “independent power as regards its “internal Government," and that that alone was to be exercised by it. An ex-Lord Chancellor, Earl Cairns
on the other hand, after quoting Sir Evelyn Wood'sdefinition of the word Suzerainty, “That the country is to have entire
entire self - government as regards its own interior affairs ; but that it cannot take action against with an outside Power without permission of the Suzerain,” expressed his opinion that the reservation of the foreign relations did not express the real meaning of the word, for if it were so, the Sovereign of Great Britain would be Suzerain of Afghanistan according to the arrangement with Abdurrahman. The Marquis of Salisbury at the same time stated that suzerainty did not preclude interference in internal affairs.
In the discussion arising out of the deliberations on the same subject in the House of Commons it was laid down by the Prime Minister, Mr. Gladstone, that suzerainty though quite distinct from sovereignty had marked relations to it. The statement may possibly have been absolutely correct, but by reason of its incompleteness it was not a particularly satisfactory explanation.
In 1884 the subject appeared to lose its practical importance in this connection, as in the Convention of that year between this country and the Transvaal, or as it then was styled, the South African Republic, no mention was made of suzerainty. It may be observed, however, that the Convention of 1881 was not abrogated. The new Convention was an agreement that certain new Articles should be “ substituted for the Articles embodied in the Convention of 1881." It seems plain, therefore, that the suzerainty remained, the change being merely a variation of the conditions. Both conventions are of course now torn up, but the actual relationship between the two States immediately before the outbreak of the war, presumably that of suzerain and vassal, must still be of interest in considering the action on one side and the other which preceded the war. It happened that in 1882,
while the first Convention was newly in force, the writer ventured to contribute to the LAW MAGAZINE an article on “Suzerainty,” in which an attempt was made to explain the relative position of a Suzerain Power and its Vassal State to each other and each to the world in general. The Editor of the LAW MAGAZINE has suggested that it may not be inopportune at the present time to deal with the subject again, and that a reproduction of the views then expressed would be considered of somewhat greater value than an explanation written under the possible influence of recent events. In acceding to the suggestion, the writer desires to state that the following examination of the subject is a reproduction of the views expressed in 1882 with such revision only of stated facts as have been rendered necessary by events which have happened since that date.
The subject to be discussed, the meaning of the term Suzerainty as applied to States can best be dealt with by asking, and so far as may be, answering the following question: What are the rights and duties of Suzerain and Vassal States? There have been even in recent times several instances of States subject to Suzerainty, besides the Transvaal, as for instance, Roumania, Servia and Greece (before 1830) to the Ottoman Porte, and if their positions are considered it is apparent that the rights of Vassal States and consequently the reciprocal duties are not in all instances identical, but that they are capable of at least some modification by agreement or otherwise. From this it is obvious that an absolute answer cannot be given to the question in the form put. It is proposed, therefore, to consider the rights consequent upon the status of suzerainty and vassalage whereor in so far as they are not modified by any special terms, and then to discuss to what extent they can be varied without the Vassal State being on the one hand entirely merged