Military law is a special body of rules applicable to special classes of persons. It has nothing to do with the general right of citizens to defend their own per-ment? sons and property, or the right - which is also a duty to preserve the peace against rioters by the use of whatever force is reasonably necessary. Here there is no question of any special prerogative of the crown,

though the duty of lawful men in such case is gen- where the courts were open and the king's writ could

bounds of places where warlike operations are in sight. In many places there may outwardly be peace, and yet modern means of communication may admit of important aid being conveyed to the enemy in the shape of information, supplies and personal adherents. In this manner the effective radius of a state of war has been multiplied tenfold or more. By recognizing this fact we do not alter the law, but apply it to the facts as they exist; nor do we disparage the wisdom of our predecessors who declared their opinion of the law in a form appropriate to the facts as known to them.

IV.

The results which are accordingly submitted are shortly these.

So-called "martial law," as distinct from military law, is an unlucky name for the justification by the common law of acts done by necessity for the defense of the commonwealth when there is war within the realm. Such acts are not necessarily acts of personal force or constraint. They may be preventive as well as punitive.

The justification of any particular act done in a state of war is ultimately examinable in the ordinary courts, and the prior question whether there was a state of war at a given time and place is a question of fact.

are not closed. It is known that evil disposed per- that the range of those acts must extend to the presons have agreed to land at several ports for the pur-vention of aid and comfort to the enemy beyond the pose of joining the enemy and giving him valuable aid and information. Bristol is one of the suspected ports. What shall the mayor of Bristol do? I submit that it is his plain, moral duty as a good citizen (putting aside for a moment the question of strict law) to prevent suspected persons from landing, or to arrest and detain them if found on shore, to assume control of the railway traffic and forbid undesirable passengers to proceed northward, and to exercise a strict censorship and inquisitorial power over letters and telegrams. All these things are in themselves trespasses (except, probably, forbidding an alien to land); some of them may perhaps be justi. fiable under the statutory powers of the postmastergeneral, but summary restraint by way of prevention must be justified by a common-law power arising from necessity, if at all. Observe that I say nothing about trial or punishment. The popular (and sometimes official) notion that martial law necessarily means trial by court-martial has caused much confusion. Summary punishment may or may not be necessary. In that respect the mayor's authority would be like that of the master of a ship. Now, if the mayor of Bristol fails to do these things, he will surely find himself in as much trouble as his predecessor in the time of the Bristol riots. And I do not think he will improve his defense by pleading that the peace was still kept in Bristol and the courts were open, and therefore he thought he had no power to do anything beyond the ordinary process of law. Nor yet will he mend matters if he says that he was waiting for an order in council It may be objected that, if the view now prowhich was never issued, or never came to his knowl-pounded is correct, acts of indemnity are superfluous. edge. At best it will be a topic of slight mitigation. But this is not so. An act of indemnity is a measure For an order in council, though it might be useful of prudence and grace. Its office is not to justify as evidence that the person acting under it was acting unlawful acts er post facto, but to quiet doubts, to reasonably and in good faith, could not of itself make prevent vexatious and fruitless litigation, and, quite anything lawful which was not so before; nor, con- possibly, to provide compensation for innocent perversely, could any accident or default in higher places sons in respect of damage, inevitably caused by jusderogate from the power and duty of the magistrate tifiable acts, which would not have supported a legal on the spot. At one time it was a rather favored claim. doctrine that extraordinary but necessary acts in time of war or rebellion, outside military law proper, are all in the first instances illegal, and that it may be a political duty to commit unlawful acts and rely on the legislature's grace for a subsequent act of indemnity. But this, it is submitted, imputes gratuitous folly to the common law, which cannot be so perverse as to require a man in an office of trust to choose between breaking the law and being an incompetent officer and a bad citizen. In the absence of positive authority (for there really is none) we are entitled, and, indeed, bound, to suppose the law to be reasonable. It seems, therefore, that the acts which every courageous and prudent magistrate would certainly do in the circumstances supposed are not a kind of splendid offense, but are (in the words of Justice Kingsmill) "justifiable and lawful for the maintenance of the commonwealth." It also seems

There may be a state of war at any place where aid and comfort can be effectually given to the enemy, having regard to the modern conditions of warfare and means of communication.

If anyone suggests a danger of this doctrine of necessity being extended without limit, the answeralmost too elementary to call for statement - is that courts of justice must conclusively presume the ordinary process and remedies of law to be sufficient in time of peace.

V.

So far I have not mentioned the recent decision of the judicial committee refusing the petition of D. F. Marais for special leave to appeal (85 L. T. Rep. 734; [1902], A. C. 109), because, in my opinion, the only point it really decided was that the absence of visible disorder and the continued sitting of the courts are not conclusive evidence of a state of peace. This, I venture to think, is right, for reasons already indicated. Mr. Marais had applied to the local court for summary release, on the ground that there was no state of war at all at the time and place, and there

Georgia has a stringent law forbidding its citizens to carry pistols on pain of forfeiting the weapons and paying a fine of fifty dollars or being imprisoned for thirty days. Shortly after the passage of this enactment Judge Lester was holding court in a little | town, when suddenly he suspended the trial of a case by ordering the sheriff to lock the doors of the court house.

Gentlemen," said the judge, when the doors were closed, "I have just seen a pistol on a man in this room, and I cannot reconcile it to my sense of duty The "degenerates" of the assassin type include to let such a violation of the law pass unnoticed. I Clement (degenerate fanatic and mentally unbal ought, perhaps, to go before the grand jury and in-anced), who murdered Henry III of France; Chardict him, but if that man will walk up to this stand lotte Corday, who stabbed Marat in the times of the and lay his pistol and a fine of one dollar down French revolution; Cesario Santo, the assassin of the here, I will let him off this time." late President Carnot of France, and Michael Golli, anarchist and fanatic, who assassinated Senor Canovas, the premier of Spain, in 1897. The three most recent assassinations include those of the Empress of Austria, King Humbert of Italy, and President

"This is all right," said the judge, “but you are McKinley. Luigi Luchini, it is determined, who not the man I saw with the pistol."

moody temperament - a man whose criminal tendencies were diagnosed and foretold by Lombroso. As regards Czolgosz, the murderer of President McKinley, he was a degenerate, but sane.

Many of these degenerates were youthful, and probably had they lived longer would have developed insanity, their earlier records showing that they were "borderland" cases on the margin of sanity and insanity. Thus, Jacques Clement was twenty-five years, Charlotte Corday twenty-five years, Booth twenty-seven years, Luchini twenty-five years of age, Czolgosz twenty-eight years. Louvel had reached thirty-seven years and Guiteau forty-two.

WHAT IS MEANT BY "C. O. D.?"

An interesting question came up before the Court of Appeals of Kentucky in the case of the Louisville Lithographic Co. v. Scheder (May, 1901, 60 S. W. 8), on refusal to permit the buyer of goods ordered "C. O. D." to examine same, and the point at issue was, what was meant by C. O. D.

It appeared that plaintiff shipped the goods C. O. D., so concealed that defendant could not examine them, and refused to permit an examination without payment. It was held that it was a question for the jury, under all the facts and circumstances, whether the defendant was bound to accept and pay for the articles without an opportunity to examine them. The court said in part:

duty of the appellant to pay the charges and accept the same. He also contends that appellant never asked him to be allowed to examine the package sent, while appellant's contention is the reverse. It is contended for appellee that the universal custom and law is that the purchaser must pay for the goods on delivery, unless by agreement time is to be given. This contention may be true, but it does not follow that a party in New York may, when a party in Louisville has purchased a particular article, send the same so concealed that it cannot be examined, marked 'C. O. D.,' thus requiring the purchaser to pay for an article which he has not had any opportunity to examine and determine whether it is the article purchased by him or not. Under all of the facts and circumstances proven in this case we do not think that appellant was necessarily bound to and the question as to whether he should have done accept the express package and pay for the same,

so or not should have been submitted to the jury."

In People's National Bank v. Freeman's National Bank (47 N. E. 588), it was held by the Supreme Judicial Court of Massachusetts that a written instruction "papers to be delivered only upon payment of draft," sent to a collecting bank with a draft in a sealed package of papers, is not invalidated by the collecting bank allowing the drawee to open the package and examine the papers before payment of the draft, as such temporary surrender for examination is not a "delivery."- The Express Gazette.

ORATORY NOT A LOST ART.

"It appears from the testimony in this case, and from the letters passing between the parties, filed, that the appellant is a lithographic company in Louisville, the business of which is to obtain what is called 'lithographic stones,' so prepared that it Since the Hon. William Jennings Bryan brought may print or make a certain design, and that it the Chicago convention to his feet by his famous had a contract with a certain company to furnish cross of gold" speech, this country has had no to it a large number of cigar labels of the kind more convincing proof of the power of oratory than mentioned in the pleadings, which had to be of a the speech of Attorney-General Isidor Rayner, of proper stamp, color, etc., and for which appellant | Maryland, in summing up before the Schley court had prepared a sketch. It appears that appellant of inquiry, says the Albany Argus. Even in cold had condemned several proofs furnished to it by type the tingling sentences of Mr. Rayner's peroraappellee, who resided in New York or New Jersey, tion create an impression that leaves no surprise at but finally a proof was sent that was, in substance, their effect upon those who received them from the 'O. K'd.' by appellant, but in the 'O. K.' letter speaker's lips. ་ ( When grizzled naval officers and it was stated in effect that appellee should remember robed judges are moved to tears by the spoken word, that the same should be 'A. No. 1,' as mentioned in who shall say that its influence is waning with the former letter. It further appears that some corre- increasing culture and education of the times? spondence had taken place between the parties, in In the law court, the rostrum and the pulpit, the which plaintiff had demanded that a payment should human voice still works its spell, and yet one selbe forwarded to him for the work, which defendant dom hears nowadays of great orators. There was a declined to do, and pretty soon thereafter plaintiff time when the world thought of Wendell Phillips expressed the stone. From the letter it appears or Henry Ward Beecher, first as the orator, and that plaintiff was directed to forward the stone by then as the reformer and preacher; but modern opinexpress, but there was nothing in the letter indi-ion regards with a certain suspicion any appeal to cating that it was to be forwarded 'C. O. D.,' although about the time of the writing of the letter in question by the appellant, the plaintiff had written that he would ship it 'C. O. D.' The contention of appellee is that he was entitled to ship the stone in question 'C. O. D.' and that it was the

feeling before intellect. We are half ashamed to own that the heart leads the brain, and yet no amount of modern scientific training will ever make it otherwise. The tendency is to overrate logic and belittle sentiment. Attorneys and clergymen are taught to argue, to marshal facts in solid array until,

er

by their very weight, they crush opposition. All particular defect that induced this bequest was canvery well, if the intellect which they address will give heed; but there is a subtler voice in every human heart which will not be silenced by mere argument, an ear which listens only when the tones of appeal are something finer than those of cold logic. The slightest touch of human interest moves a human audience more surely than the greatest weight of reason.

The speaker who does not despise the so-called "flowers of rhetoric" and "tricks of expression" is the one who, other things being equal, gains his point. If he himself does not feel the sympathy he strives to convey to his hearers, his appeal is in vain. But the true orator is a genius, an artist who, while he is on his feet, experiences every emotion that his speech portrays. He speaks from the heart and his words go straight to the heart.

That the gift of oratory, once possessed, can be cultivated, there is no doubt; and the man who owns and is not too self-conscious to use it, is armed with a power which has worked and is still ready to work, the world's development.

among

the foremost in

VALIDITY OF THE PROVISIONS OF THE
WILL OF THE LATE CECIL RHODES.

It is safe to predict that should the provisions of the late Mr. Rhodes' will ever come before a court of law, they will afford plenty of matter for discussion. In the main, no doubt they will be construed according to the law of Rhodesia, whatever that may be; and, if the Roman-Dutch law of the Cape is in operation there, it may be that the gift for keeping the grave in order in perpetuity is valid, although prima facie not so according to English law. It is hardly necessary to point out that a gift for maintaining a tomb is not charitable so as to escape the rule against perpetuity. A devise of land for a park, such as the devise of land near Bulawayo, which is to be "planted with every 'possible tree," could, doubtless, be now effectually made here under the Mortmain and Charitable Uses Act, 1891, since an order of the court could be obtained for the retention of the land in lieu of sale. But this, again, would depend on Rhodesian law. The provision for constructing a short railway line from Bulawayo to Westacre, so that people of Bulawayo may enjoy the glory of the Matoppos from Saturday to Monday" is novel, but not apparently open to criticism on legal grounds. If the provision extended to maintaining the railway, it would be a question in this country whether the encouragement of week-end holidays was a charity. The gift of £100,000 to Oriel College for the purpose of extending and repairing the college buildings and augmenting the stipends of the resident fellows is, of course, a good charitable gift, and none the less that £10,000 is to go towards improving the fellows' dinners. What was the

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not say. The high table at an Oxford or Cambridge college is not usually the place where dinner is lacking, either in quality or quantity. And the provision for a vast number of Colonial, American and German scholarships is interesting on the ground of the magnificence of the conception and the novelty of the means by which it is carried out, rather than from any legal points that can arise. Here, again, the gift is charitable, and in English law is not open to criticism. The same, however, cannot be said of the devise of Mr. Rhodes' residence in Cape Colony - De Groot Schuur — as a residence for the premier of the federal government of South Africa, when such an official shall come into existence, and the gift of £1,000 a year for providing an equipage and other purposes. It would not be feasible by English law to tie up land in this way to await a contingency which may happen, if at all, at a remote period, nor is it easy to see how the gift would be effectual in law, even if the premier were in office. But this would be a matter to be settled, so far as the house is concerned, by Cape law. The only part of the will which is necessarily governed by English law, is the devise of the Dalham Hall estate in strict settlement, with conditions requiring every tenant for life or tenant-in-tail to have been, or to be, engaged for ten consecutive years in business, and these conditions could, of course, only be effective, if at all, for a limited time. The will, as a whole, is full of legal points, but whether any of them will be ever raised is very doubtful, especially having regard to the nature of the residuary gift.- Solicitor's Journal.

THE IRISH JUDICIARY AND DUELLING.

An amusing story of the charge given by Judge Fletcher, at the Sligo Assizes in 1812, on a duel in which Major Hillas had been killed, was told by a contemporary á propos of recent cases of duelling on the Continent. "The law," said the learned judge to the jury, "says the killing of a man in a duel is murder, and, therefore, in the discharge of my duty, I am bound to tell you it is murder. But I tell you at the same time a fairer duel than this I never heard of in the whole course of my life." And so the jury were left to discriminate! Mr. Justice Fletcher, who was one of the justices of the Court of Common Pleas from 1807 till 1823. was sitting on the bench with judges who had been notorious duellists. He had practiced at the bar and been a member of the Irish house of commons during the last decade of the eighteenth century, when duelling was stringently enforced by public opinion.

The late Right Hon. John Edward Walsh, who was master of the Rolls in Ireland from 1866 till his death, in 1869, and was called to the Irish bar in 1837, in a little book published in the late forties of the last century, entitled "Ireland Sixty Years