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damaged." The giving of gratuities to an agent, as to which a pronouncement from the bench1 that they were highly improper and morally objectionable, " because they are necessarily calculated to sap the fidelity of the agent," was hardly needed, has now been made a criminal offence.

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Intimately connected with the legal principle which makes contracts affected with a suspicion of bias void or voidable, is the rule which disqualifies a magistrate from adjudicating in a matter in which he may be supposed to have an interest." It is sufficient to show," said Mathew, J., in Reg. v. Gaisford (L. R. [1892], 1 Q. B., at p. 383), “that he might have been influenced: for in such a case it is not likely that a magistrate should knowingly be under the "influence of an improper bias, although he may be placed "in such a position as to be influenced, or to run the risk of being influenced unconsciously to himself in his decision.” In Leeson v. The General Council of Medical Education,2 Fry, L.J., even expressed the opinion that subscribers to associations for the purpose (inter alia) of carrying on prosecutions cannot be said to be free from suspicion of bias or prejudice in the case of prosecutions instituted by the associations to which they subscribe, and therefore should be disqualified from acting in a judicial capacity in any matters akin to such prosecutions. The delicate question whether a teetotaller as well as one interested in a brewery company should be prohibited from sitting on the bench at licensing sessions is even now being discussed before the Royal Commission on the Selection of Justices.3

"No part of the jurisdiction of the Court"—the old

1 In Smith v. Sorby [1875], 3 Q. B. D., at p. 554.

2 [1889], 43 Ch. Div., at p. 390.

8 Since this article was written the report of the Royal Commission has been published. It does not recommend that the advocate of total abstinence should be disqualified for appointment as a justice, his interest being only one of opinion, and not a pecuniary or material one. If he refused to sanction all licences he would be refusing to exercise his discretion as a justice, a negation of duty which would be dealt with by the Lord Chancellor.

Court of Equity-" is more useful than that which it "exercises in watching and controlling transactions between persons standing in a relation of confidence to each other," said an eminent judge sixty years ago. The rule laid down by Lord Eldon a hundred years ago, in Huguenin v. Baseley,2 has been admitted into every sphere of business transaction, and is capable of still further expansion. It prohibits absolute freedom of contract between trustee and beneficiary, parent and child, guardian and ward, legal adviser and client, doctor and patient, confessor and penitent, expectant heirs and reversioners, and now between money-lenders and borrowers. "It is based upon a knowledge of human nature,”3 and will commend itself more and more to popular sentiment with the growth of delicacy and keenness of honour.

In these few pages an endeavour has been made to show that the system of remuneration which we began by criticising is contrary to the spirit of the law, and, in the present day, to the spirit of the times. Less than twelve months before the shareholders' meeting above referred to it had been emphatically condemned from the Bench. In In re Dive, Dive v. Roebuck (L. R. [1909], 1 Ch. 328), Warrington, J., had refused to relieve a trustee from personal liability under sect. 3 of the Judicial Trustees Act 1896, on (among others) the ground that the valuation upon which he had accepted a security had been paid for on this principle; and in Salisbury (Marquis of) v. Kegmer ([1909], 25 T. L. R. 278) the same judge again warned trustees that if "this most reprehensible practice" was persisted in it might sooner or later get them into difficulties. What is to be done? "We are worthy of our hire, and we desire only to be

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1 Turner, V.C., in Billage v. Soulter [1852]; 9 Hare, at p. 540. 2 [1809], 14 Ves. 273.

8 Per Lindley, M.R., in Barron v. Willis, L. R. [1900], 2 Ch., at p. 131, a case in which the rule certainly operated hardly.

▲ See further a letter in Law Times newspaper of July 2nd, 1910, p. 207.

fair-it is right that the remuneration be proportionable to the value of the matter negotiated-show us a better system "-is doubtless the view expressed or silently entertained by numberless members of the profession. It is rather, we venture to think, for the profession to take the first step, to bring its system of charges into line with existing ethical standards, to make that usual which, as we admitted above, could always be specially stipulated for. The framers of the Solicitors' Remuneration Acts have had similar difficulties to face. Payment for settlements and wills by the folio has the obvious disadvantage of encouraging prolixity though there is this to be said in its defence, that certain words and concatenations of phrases have been judicially interpreted, and it is unsafe to depart from the use of recognised language except where legislation has from time to time imported into conveyances by implication what in old time used always to be expressed. But the Solicitors' Act of 1881, in laying down the principles on which general orders regulating remuneration may be made, particularly provides that fixed sums may be paid for documents prepared or perused without regard to length.1 It is upon principles of this kind that the organising bodies of other professions may be expected in the near future to lay greater emphasis. Duty, it cannot be too often repeated, must never be allowed to conflict with interest actual or potential. The dictum of Cicero cited with such approval by Lord Eldon in Huguenin v. Baseley (supra) was not of yesterday: Totius autem injustitiæ nulla capitalior est quam eorum qui, cum maxime fallunt, id agunt ut viri boni esse videantur.?

1 Sect. 4.

2 Cicero, De Off: lib. i, p. 13.

J. K. F. CLeave.

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VI. THE EVOLUTION OF THE CABINET

AT

SYSTEM IN ENGLAND.

T the present time of political conflict, to dip into Constitutional history is both interesting and instructive. The growth of the Cabinet System sheds much light upon the existing position. To comprehend, adequately, how the Cabinet has become what it has today, how from being the creature of the Crown it has become the instrument of the people, we must concern ourselves not only with the Privy Council and the Cabinet but with Kings and Queens, the House of Commons and the House of Lords, and with individuals.

Emerson, in an essay upon Politics, says: "In dealing with the State we ought to remember that its institutions are not aboriginal though they existed before we were born; that they are not superior to the citizen: that every one of them was once the act of a single man: every law and usage was a man's expedient to meet a particular case that they all are imitable, all alterable: we may make as good, we may make better." He might have added, we may make worse.

This is particularly true of the Cabinet system. As we trace its growth we shall see how frequently the little events have caused reformation-and nearly revolutionthe big events hesitation if not stagnation. George I knew no English, hence the Prime Minister. The Declaration of Right contained statements upon every other part of the Constitution but no mention of the Cabinet.

It will be observed how the survival of the Prerogative of the Crown in the Cabinet enables the Cabinet to perform acts which the Legislature would not sanction, nor probably the law of the land recognise.

However, to begin at the beginning.

It may be gathered with certainty that from a very early

date the Sovereigns of England have admitted to their consideration the counsel and suggestions of their chosen advisers and friends instead of appealing to Parliament or to the whole body of Privy Councillors. Also the Privy Council, in the 14th and 15th centuries, was frequently divided into sections and committees to expedite the performance of executive business.1

Lord Bacon, writing in the reign of James I upon the value of advisers to the King, cites the example of "King Henry V, who in his greatest business imparted himself to none except it were to Morton and Fox." No definite Act of State was executed without being considered first by the Privy Council and the assent of that body obtained.

The commencement of the reign of Charles II may be taken as the starting point from which we may follow the development of the system, for although in the reign of Henry VI there came into existence a body which in many respects resembled the modern Cabinet, yet it lived only a brief time, and then vanished without leaving a trace of its existence. The Privy Council in Charles II's reign, having the number of its members greatly increased and thus becoming too unwieldy in dealing with matters relating to particular departments of the State, upon the suggestion of Clarendon, was split up into committees. The most important was the Foreign Committee, whose duty was to deal with departmental matters unsuitable to be brought before the whole body of Privy Councillors. In the construction of any form of Executive it was necessary that some link should be retained between the Executive Government and the House of Commons. Whatever the policy of the Executive might be, it could not be carried into effect without the support and co-operation of the Commons in granting supplies. We find, thus, Clarendon and Southampton as the representatives of the Executive meeting and 1 Nicolas, P. of P. C., VII, p. 4; Burnet, History of Reformation, Vol. II.