recent English statute was, therefore, to return to the old law of England in the case of servants' wages, and absolutely to abolish the attachment of such. The law of Scotland was permitted to remain as before-only, instead of the perplexity of ascertaining what was necessary for aliment, and what was surplus or excess, £1 in the week was fixed indiscriminately for all servants. The words of the Scotch Act are broad enough to exclude arrestment of wages the amount of which does not exceed 20s. per week, whatever be the periods of payment, though more distant than each week. But there is every and most cogent reasons to hold that it was intended only to apply to cases where the wages are not only in amount less than 20s. in the week, but where the payments were made weekly, or at short intervals correlative with current maintenance. Any other interpretation would lead to gross injustice. A servant might have a salary or wage of £52 in the year, payable monthly, quarterly, or half-yearly, or yearly. No doubt in such cases the wages were not in excess of £1 in the week. But with justice could it be held as a fair reading and interpretation of the statute, that a creditor who, trusting to the faith of the servant and the payment of his wages at the stipulated terms, had given needful aliment during the currency of these terms, was debarred from attaching the periodical payment; or that the servant, under the shield of the Legislature, could set him at defiance under the mere letter of the Act destructive of its spirit and object, and pocket his full wages, and leave not a penny to his alimentary creditor. A recent case in the Court of Session (11th March, 1873, Mollison, 45 Jurist 328) illustrates well the power of equity to overrule strict application of legal rules. There a creditor was found preferable to a sum to which, by an omission, he had received no direct title, but on merely equitable principle. With reference to the opposite contention, Lord Cowan remarked that 'Equity forbids that such a result should be allowed to stand.'

"The preference intended to be given to alimentary creditors, and they being saved from the stringent operation of the statute, is shown by the fourth section, in these words :- This Act shall in no way affect arrestments in virtue of decrees for alimentary allowance or payments.' In point of fact, Richardson's decree is for an alimentary allowance, which enabled the servant to earn the very wage now forming the fund in medio.

"The S.-S. does not express any opinion how far the wages of farm-servants are protected from arrestment under the statute, when attached during the currency of the term of service. But he feels confidence in deciding the case on its specialties.

"1st. Richardson's claim is clearly alimentary, and the fund in medio is the direct produce of that aliment. 2d. Wilson, the servant, by the practice of the previous years, recognised his claim as alimentary and preferable on his wages, and therefore induced Richardson to continue the aliment for the third year. 3d. The fund had ceased to be alimentary, and was not sought from the master until several months after the close of the term of service, clearly shewing that the servant acquiesced in its appropriation to the alimentary creditor, and had no longer any need of the money for his sustenance."

These notes have been submitted to the Sheriff-Principal, who fully concurs with the conclusions reached by the Substitute on the specialties of the case. For Wilson, Robert Mitchell, solicitor. For Ostler and Richardson, Alexander Wilson, solicitor.

HIGH COURT OF JUSTICIARY.

WALKER V. BATHGATE. - June 4, 1873.

Appeal-Salmon Fisheries Act, 1868-Expenses. This was an appeal from the S.-S. of Peebles, in a complaint under which appellant was charged with a contravention of the Salmon Fisheries Act 1868, in respect that upon a certain occasion he had been guilty of fishing with salmon roe in the Tweed. Three witnesses were examined by the Procurator-Fiscal (Bathgate), and at the conclusion of their examination he abandoned the case. Thereupon, Walker's agent asked for expenses against the Fiscal, Mr. Bathgate; but the S.-S. held that he had no power under the Act to give them. This finding was appealed to the Circuit Court at Jedburgh, whence it was certified to the High Court of Justiciary.

App. argued that the complaint against him had been brought under the Summary Procedure Act of 1864, the 22d section of which bore that no expenses in case of an acquittal could be awarded against a public prosecutor, unless power to that effect were given in the Act, contravention of which was libelled. The S.-S. had held that there was no such authority given by the Salmon Fisheries Act of 1868, or any of the Tweed Fisheries Acts. The S.-S. was in error in that view. In this case resp. (Bathgate) had been really in the position of a private complainer; but even taking him to have been in the position of a public prosecutor, the Tweed Fisheries Act of 1857 contained a provision for expenses against the accused in the event of a conviction, and, by implication, in case of an acquittal against the prosecutor. There was nothing in it to prevent the awarding of costs according to common law and usage against the prosecutor in case of an acquittal; and unless the respondent could show that there was, he had no case. (Wilson v. Morison, 2 Broun, 2313; Christie v Adamson, 1 Irv., 293; Scott v. Everett, 15 D. 288.)

It was argued for the respondent that he had been undoubtedly in the position of a public prosecutor in this case. Expenses had only been awarded against the public prosecutor acting, not in his official capacity, but practically as a common informer. Also, under the 22d section of the Summary Procedure Act no award of costs, in the case of an acquittal, could be given against a public prosecutor unless an express provision to that effect were contained in the Act libelled on. There was no such provision in the Salmon Fisheries Act of 1868, or any of the Tweed Fisheries Acts.

In the

LORD JUSTICE-CLERK-I certified this case from the Circuit Court of Justiciary, not so much because I had any doubt on the argument as then presented to me, but because I thought it of importance that the point at issue should be decided as authoritatively as possible, in order to rule similar cases. question as to whether the Act under which the Sheriff's judgment was pronounced did or did not authorise the Sheriff to deal with the matter of expenses under a complaint of this nature, in the way of awarding them to the accused, I am unable to understand on what ground this somewhat unjust and anomalous effect was supported. It appears to me that if the statute indicated that a Court was to deal with the matter of expenses at all, then, unless there is the clearest possible exclusion of it, the presumption in law and in ordinary justice is, both parties are to be treated in an even-handed manner; and I am now quite confirmed in my opinion that the 22d clause of the Summary Procedure Act simply brought in this matter of expenses for the purpose of clearly setting forth that the judge might impose expenses over and above the ordinary penalty. The fact that the Act of 1857 gives power to award expenses to the complainer necessarily implies the same power in the case of the respondent. In this view the 22d section of the Summary Procedure Act does not apply to the case before us; and that being so, I do not feel it necessary to go into the question of common law presumption as to what would be the position of matters if nothing were said in the Act of 1857 about expenses to either party. Neither do I think it requisite to decide the question as to whether in this case the ProcuratorFiscal, Mr. Bathgate, was acting as a public prosecutor or not, though I am of opinion that he was acting in that capacity.

LORDS COWAN and NEAVES concurred.

The Court sustained the appeal, with expenses, and remitted to the Sheriff to dispose of the question of expenses in the Inferior Court.

Act. Watson, Brown. - Alt.-Asher, A. J. Young.

THE

JOURNAL OF JURISPRUDENCE.

THE INSTITUTE OF INTERNATIONAL LAW FOUNDED

AT GHENT.

PROBABLY the same causes which for so many centuries doomed the Netherlands to be the theatre of war have contributed to confer on them the proud distinction of being the cradle and the nursery of peace. Certain it is that the land of Grotius has never forgotten the traditions which cluster round his name; and equally certain that if Belgium has remembered more of the theology of the Jesuits than we as Protestants or her own Liberals may believe to be for her good, she has remembered, alongside of it, the jurisprudence of Soto and Suarez of Grenada, in which that of Grotius originated. The only periodical of real importance in the branches of study which we cultivate here, issues from the press of one of her grand old provincial cities, and it was in that city that the first society of scientific jurists for the cultivation of international law was formed little more than two months ago.

In our own country and elsewhere the investigation of the physical laws of nature is conducted, both separately and in conjunction, by experts whose lives are devoted to the pursuit. In that region of inquiry science traces the chart by which art and industry are to sail, theory is laid at the root of practice, and progress is manifest and indisputable. Popular sympathy, so far from being an impediment, is there an encouragement and a stimulus. However uninstructed may be the outside public which gathers round a meeting of the British Association, however wild may be the hypotheses which are started by enthusiasts with reference to the unexplored and possibly inexplorable border-land between mind and matter, no one disputes the existence of law, and within the region of physics proper, men are willing to be guided in the pursuit of law by those in whose hands scientific labour has placed the means of its actual discovery. In chemistry, in physiology within its true limits, above all in mathematics and its applications to mechanics, engineering, astronomy,

1 Introductory Lecture delivered by Professor Lorimer to the Class of Public Law in the University of Edinburgh on the 4th November. VOL. XVII. NO. CCIV. - DECEMBER 1873.

2 Y

there is no guess work, there are no "leaps in the dark." Within the last twenty years philology has made such marvellous strides by the same careful application of means to ends, as to bring pre-historical almost up to the level of historical evidence. Even of the mental sciences in the stricter sense, the same, with a difference, may be said. The soil may be more shifting, but the methods of cultivation have improved, and the tillage is left to skilled hands. Nobody approaches logic or metaphysics without at any rate affecting to inquire seriously into natural laws. It is not till we come to ethics that popular takes precedence of scientific action, that the pursuit of natural law is confessedly-nay, professedly-abandoned, and that we hear of a "principle of utility," which means, not the discovery whether by observation of results or otherwise, of rights and duties, and of the means of their realization in special circumstances, but the enunciation of individual preferences and the gratification of ephemeral caprices. It is not till we come to politics, national or international, that we take leave of rational inquiry altogether, deny that there is even anything rational to inquire after, and complacently pass over to the guidance of passion and chance. The function of exposition, which in other branches of knowledge follows after that of investigation, here occupies the whole field. Everybody discourses, and applauds, and ridicules, from some more or less gratuitous party assumption or sectarian dogma, but nobody inquires or works; and when the period for action comes, as come it must, we find ourselves pretty much in the same condition as if the subjects had never been mentioned at all. It is then we call in despair on the science which we despised; that we invoke the guidance of its individual representatives whom we slighted. Diplomatists, arbitrators, practising barristers, party politicians, and newspaper editors, rush to the study of Heffter, and Wheaton, and Bluntschli, and Hautefeuille, and Ortolan, and Calvo, and the rest. But, alas! the oracles are not agreed, and many of their responses are little better than historical records of practices still more conflicting. No acknowledged principles have been discovered, no fixed objects have been determined by the consent of the learned; and out of a chaos of contradictory opinions, most of them partially correct, but which can be made to tell in almost any direction, men to whom the whole subject is new have to pick out some sort of rule of present action. Can it be wondered at that in such circumstances we end in passing municipal enactments of international import, and framing international treaties gravely affecting domestic wellbeing, very much as the apparent interests or prevailing passions of the moment dictate? It is fortunate if we stop there, and do not tie ourselves down for the future to the observance of rules of impossible execution, the only merit of which is that for the time being they help us to a solution in circumstances in which any solution is better than none.

It was this train of thought, coupled with the pressing necessity

which recent events had revealed, which, in the spring of the present year, led M. Rolin Jacquemyns, the learned Redacteur-en-chef of the Revue de Droit International, to determine on carrying out a scheme which had suggested itself simultaneously to several of the most eminent of his coadjutors, for the organization of collective activity on the part of the most prominent individual cultivators of International Jurisprudence. In March last he addressed a confidential communication to about twenty jurists, amongst whom he did me the honour to include me, suggesting "a private meeting of a limited group of men already known in the science of international law by their writings or by their acts, and belonging as much as possible to different countries.” "Hitherto," he continued, "the movement towards the regularization of international relations has manifested itself in two ways:

(a) By diplomatic action, that is to say, by the proceedings, the correspondence, the conventions, or the congresses of representatives officially accredited by certain nations.

(b) By individual scientific action, that is to say, by writings having for their object to express, in a precise methodical and reasoned form, the whole or a part of the rules which their author considers as those which are followed, or which ought to be followed, in international relations.

"Diplomatic action originally intervened only after the termination of wars, in order to discuss and to determine the conditions of peace. At present it tends, with a good will not always sterile, to meet requirements of a higher order. Thus we have seen it already more than once endeavour

"1st. To trace certain general rules dictated by a spirit of humanity and justice, and going beyond the political necessities of the moment. "2nd. To admit into the domain of positive international law an increasing number of relations which till then were held to belong to national law.

"3rd. To accomplish the arrangement of international differences by pacific arbitration.

"Individual scientific action, in a manner equally progressive, has more and more recognised the obligation which lies upon it to give a reasoned direction to public opinion by formulating rules which, as far as possible, exhibit the characteristics of certitude and practical efficacy. Already some jurisconsults have adopted for their writings the form of veritable codes. It would seem, then, that for the science of international law we are arrived at an epoch corresponding to that of the appearance in the history of the national law of several peoples of those collections (recueils) due to private sources, and which have served as a transition between simple customary tradition and homologous custom or written law. But these progressive aspirations of the two grand factors of international law come in practice in collision with the gravest obstacles. Diplomacy is impeded by conflicts at least apparent between the