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allowed this derivative settlement is, that they have no civil status of their own, and are subject to a total legal incapacity. This has been recognized again and again, and particularly in the case of Craig v. Greig (18th July 1863), where the charge of a pupil's status by his becoming a minor pubes was held to give him against the parish of his own birth a claim which, so long as he was a pupil, would have been directed against his father's birth settlement. Now a lunatic, though above puberty, if his lunacy has commenced in pupilarity, and he has thus always been subject to a total incapacity, is regarded in law as a pupil incapable of acquiring a settlement for himself, but holding the parent's settlement. This was the view taken in Hay v. Paterson (29th January 1857) where the settlement of a lunatic beyond pupilarity was held to be in the parish of the parent's settlement; and it was the view approved in the case of Hopkins v. Ironside (27th January 1865), when it was observed by Lord Cowan that a lunatic, during the period of his insanity, is in the same situation as a pupil, and by Lord Neaves that the only way to get at the birth settlement of the pauper in such a case was to show that there was no parental settlement. Some stress was laid in Lawson v. Gunn, on the fact of the parent's death, but while in this circumstance it was to be distinguished from the two cases last referred to, where the paupers became chargeable during their parents' lifetime, still that distinction could hardly be made a turning point for decision. It is not an indispensable condition of the law as applied to the settlement of pupils that the parent from whom the settlement is derived should be alive when the chargeability commences; and by a parity of reasoning that circumstance ought not to affect or alter the settlement of a pauper lunatic who has always been in a state of imbecility, that is, always in pupilage.
Fees of Counsel in Ireland.—We find, in a recent number of the Irish Law Times Reports, the report of a decision in the Armagh Election Petition as to the fees to be allowed to Counsel in Election Petitions:-"The Master of the Court, in taxing the bill of costs of an ordinary parliamentary election petition, reduced--1st. Counsels' fees on a motion for particulars, from five, four, and three guineas, to three, three, and two guineas; 2nd. The fee to senior counsel from two hundred to one hundred guineas, on his brief at the hearing; 3rd. The fee to junior counsel from sixty to fifty guineas; 4th. The refreshers of senior counsel from twenty to fifteen guineas; 5th. The refreshers of junior counsel from twelve to six guineas; 6th. The fees for eight consultations to four; 7th. The consultation fees from five, five, and three guineas to three, three, and two guineas; 8th. He disallowed the expenses of the printing of an analysis of a bill of particulars; 9th. Disallowed £38, 178. 6d. out of £117, 12s. incurred in the preliminary examination of witnesses; 10th. Disallowed £214 out of £333, 10s., the expenses paid to witnesses, only one shilling viaticum being allowed to witnesses resident in town; 11th. Disallowed various charges and fees on subpænas ; 12th. Disallowed the payments made to assistants for taking evidence.
“The Court, ou appeal, referred the bill of costs back to the Master to reconsider the refresher fees allowed to junior counsel, and to allow the item for printing, and the expenses of summoning any witnesses mentioned in the bill of particulars; also, the necessary expenses of the examination and attendance of such witnesses as had been summoned and attended, to such amount as he should see fit; but refused to interfere with the Master's discretion with regard to the other items."
Law Reporting. We recently referred to the “Digest of the Law Reports," as illustrating the growth of case law. We have had it in use for some weeks, and a more astounding compilation we never met with. It is devoid of method. With Fisher's “Digest as a model before him, the editor has disregarded one of the prominent features of that work, i.e., keeping to a number of general headings, and leading off with a little table of contents. This is a blunder going to the root of the work. Then the cross references are simply bewildering. A leading title is used for the purpose only of stringing together a catalogue of references to other titles. Let any of our readers consult the heading “Legacy,” or, better still, “Practice.” Under the latter they will find thirty-one colums referring to other places, and not giving a single word of any decision! We must give a specimen of “Legacy” :-
Failure of purpose.
See FAILURE OF PURPOSE OF GIFT.
See FOLLOWING ASSETS.
See “CLEAR INCOME.”
See WIFE'S CHOSE IN ACTION.
See ORDER AND DISPOSITION.
Sce PRIORITY OF BILL OF SALE.
See DISCHARGE OF SURETY.
as difficult as possible for lawyers to thread there way among the mazes of our case law.- Law Times.
[To prepare an index is by no means an amusing occupation; but to glance over one sometimes is. For example, in the index to one of the volumes of the Scotch Reports, there is this remarkable entry, “ Blasphemous publication-see Bible." There is an authentic story of a case about the hire of a hearse, which a waggish reporter reported under the head of “mortis causa conveyance.” Unluckily the joke was discovered before it was too late, and it became a “birth-strangled babe."]
THE FRANCONIA CASE. The following extracts are from the judgment of the Lord Chief-Justice of England in this important case :
British TERRITORIAL WATERS. Possibly, after these precedents and all that has been written on this subject, it may not be too much to say that, independently of treaty, the three-mile belt of sea might at this day be taken as belonging, for these purposes, to the local state. But it is scarcely logical to infer from such treaties alone that, because nations have agreed to treat the littoral sea as belonging to the country it adjoins, for certain specified objects, they have therefore assented to forego all other rights previously enjoyed in: common, and have submitted themselves, even to the extent of the right of navigation on a portion of the high seas, and the liability of their subjects therein to the criminal law, to the will of the local sovereign and the jurisdiction of the local state. Equally illogical is it, as it seems to me, from the adoption of the three-mile distance in these particular instances, to assume, independently of everything else, a recognition, by the common assent of nations, of the principle that the subjects of one state passing in ships within three miles of the coast of another shall be in all respects subject to the law of the latter. It may be that the maritime nations of the world are prepared to acquiesce in their appropriation of the littoral sea ; but I cannot think that these treaties help us much towards arriving at such a conclusion. At all events, the question remains whether judicially I can infer that the nations who have been parties to them, and still further those who have not, have thereby assented to the application of the criminal law of other nations to their subjects on the waters in question, and on the strength of such inference to apply the criminal law of this country. The uncertainty in which we are left, so far as judicial knowledge is concerned, as to the extent of such assent, presents, I think, a very serious obstacle to our assuming the jurisdiction we are called upon to exercise, independently of this, to my mind, still more serious difficulty—that we should be assuming it without legislative warrant. So much for treaties. Usage as to the application of the general law of the local state of foreigners on the littoral sea, notwithstanding reference to usage is frequently made by the publicists in support of their doctrine, there is actually none. No nation has arrogated to itself the right of excluding foreign vessels from the use of its external littoral waters for the purpose of navigation, or has assumed the power of making foreigners in foreign ships passing
through these waters subject to its laws, otherwise than in respect of matters connected with the navigation, or with revenue, local fisheries, or neutrality. And it is to these alone that the usage relied on is confined. Nor have the tribunals of any nation held foreigners in these waters amenable generally to the local criminal law in respect of offences. It is for the first time in the annals of jurisprudence that a Court is called
upon to apply the criminal law of the country to such a case as the present. It may well be, I say again, that-after all that has been said and done in this respect-after the instances which have been mentioned of the adoption of the three-mile distance, and the repeated assertions of this doctrine by the writers on public law, a nation which should now deal with this portion of the sea as its own, so as to make foreigners within it subject to its law, for the prevention and punishment of offences, would not be considered as infringing the rights of other nations. But I apprehend that as the ability so to deal with these waters would result, not from any original or inherent right, but, ex hypothesi, from the acquiescence of other states, some outward manifestation of the national will, in the shape of open practice or municipal legislation, so as to amount at least constructively, to an occupation of that which was before unappropriated, would be necessary to render the foreigner, not previously amenable to our law, subject to its general control. That such legislation, whether consistent with the general law of nations or not, would be binding on the tribunals of this country-leaving the question of its consistency with international law to be determined between the Governments of the respective nations—can of course admit of no doubt. The question is, whether such legislation would not, at all events, be necessary to justify our Courts in applying the law of this country to foreigners under entirely novel circumstances in which it has never been applied before. It is obviously one thing to say that the Legislature of a nation may, from the common assent of other nations, have acquired the full right to legislate over a part of that which was before high sea and as such common to the world; another and a very different thing to say that the law of the local state becomes thereby at once, without anything more, applicable to foreigners within such part, or that, independently of legislation, the Courts of the local state can proprio vigore so apply it. The one position does not follow from the other; and it is essential to keep the two things-the power of Parliament to legislate and the authority of our Courts without such legislation to apply the criminal law where it could not have been applied before--altogether distinct, which it is evident is not always done. It is unnecessary to the defence, and equally so to the decision of the case, to determine whether Parliament has the right to treat the three-mile zone as part of the realm consistently with international law. That is a matter on which it is for Parliament itself to decide. It is enough for us that it has the power to do so. The question really is whether, acting judicially, we can treat the power of Parliament to legislate as making up for the absence of actual legislation. I am clearly of opinion that we cannot, and that it is only in the instances in which foreigners on the seas have been made specially liable to our law by statutory enactment that that law can be applied to them.
THE RESULTS. In the result, looking to the fact that all pretension to sovereignty or jurisdiction over foreign ships in narrow seas has long since been wholly abandoned —to the uncertainty which attaches to the doctrine of the publicists as to the degree of sovereignty and jurisdiction which may be exercised on the so-called territorial sea—to the fact that the right of absolute sovereignty therein, and of penal jurisdiction over the subjects of other states, has never been expressly asserted or conceded among independent nations, or, in practice, exercised and acquiesced in, except for violation of neutrality or breach of revenue or fishery laws, which, as has been pointed out, stand on a different footing—as well as to the fact that, neither in legislating with reference to shipping, nor in respect of the criminal law, has Parliament thought proper to assume territorial sovereignty over the three-mile zone, so as to enact that all offences committed upon it, by foreigners in foreign ships, should be within the criminal law of this country, but on the contrary, wherever it was thought right to make the foreigner amenable to our law, has done so by express and specific legislation—I cannot think that, in the absence of all precedent, and of any judicial decision or authority applicable to the present purpose, we should be justified in holding an offence, committed under such circumstances, to be punishable by the law of England, especially as in so holding we must declare the whole body of our penal law to be applicable to the foreigner passing our shores in a foreign vessel, on his way to a foreign port. I am by no means insensible to the argument ab inconvenienti, pressed upon us by the Solicitor-General.
It is no doubt desirable, looking to the frequency of collisions in the neighbourhood of our coasts, that the commanders of foreign vessels, who by unskilful navigation or gross want of care, cause disaster or death, should be as much amenable to the local law as those navigating our own vessels, instead of redress having to be sought in the, perhaps, distant country of the offender. But the remedy for the deficiency of the law, if it can be made good consistently with international law, as to which we are not called upon to pronounce an opinion--should be supplied by the action of the Legislature, with whom the responsibility for any imperfection of the law alone rests, not by usurpation on our part of a jurisdiction which without legislation we do not judicially possess. This matter has been sometimes discussed upon the assumption that the alternative of the non-exercise of jurisdiction on our part must be the total impunity of foreigners in respect of collision arising from negligence in the vicinity of our coast. But this is a total mistake. If by the assent of other nations the three-mile belt of sea has been brought under the dominion of this country, so that, consistently with the rights of other nations, it may be treated as a portion of British territory, it follows as a matter of course that Parliament can legislate in respect of it. Parliament has only to do so, and the Judges of the land will, as in duty bound, apply the law which Parliament shall so create. The question is whether legislative action shall be applied to meet the exigency of the case, or judicial authority shall be strained and misapplied in order to overcome the difficulty. The responsibility is with the Legislature, and there it must rest. Having arrived at this conclusion, it becomes necessary to consider the second point taken on the part of the Crown, namely, that though the negligence of which the accused was guilty occurred on board a foreign ship, yet, the death having taken place on board a British ship, the offence was committed within the