not, and cannot have, tribunals of commerce, the Bankruptcy Court is the only court in which any check can be given to such commercial immorality, as is greatly to be blamed, but yet does not amount to fraud.

In a former number,' we stated that the object of all bankruptcy law was twofold, and ought to embrace: 1. The cheap and quick realization and distribution of the assets of the bankrupt; and 2. The general advantage of society, and the protection of the trading community; objects which include the restoration of the innocent bankrupt to society, and the suspension or absolute refusal of discharge to the bankrupt who, by a criminal court, has been found guilty of fraud, or who, by reason of his reckless folly and imprudence, is, in the eyes of the bankruptcy Judge, dangerous to the trading community. We still hold that the latter, no less than the former, must form an important part of any sound legislation. The Bankruptcy Court is, as we have said, the only court in which cognizance can be taken of an offence not amounting to fraud, and it is the only appropriate court. No other can deal with such cases without involving either the country or the creditors, who have already lost their money, in the most difficult and expensive investigations. The Bankruptcy Court, on the other hand, has necessarily, in the course of investigating into the affairs of the bankrupt, been placed in possession of all the information attainable on the subject, and it can dispose of these questions without involving any one in expense.

Lord Westbury and Mr Moffatt would constitute the creditors in each bankruptcy a tribunal to determine as to the discharge of the bankrupt. But it cannot be doubted that in the hands of creditors there would be a miscarriage of justice. In some cases, prejudiced by their feelings of loss, the creditors would be too severe; and in other cases, worked on by the bribe of a contribution from the bankrupt's friends, they would grant discharge to one who ought never again to have been let loose on society as a person entitled to credit. We would take all power as to the discharge away from the creditors and confer it on the Bankruptcy Court alone, who, after hearing the trustee and the creditors, would, without doubt, apply the general principles of justice to each case.

In regard to the question of imprisonment for debt, various conflicting opinions were expressed before the committee; and we do

1 See No. for January 1865.

not well understand how Mr Moffatt, as an upholder of the inviolability of contract, comes to be an advocate for the abolition of that penalty. For ourselves, we do not see how the system which prevails of granting credit for small purchases could be maintained for a day, unless the shopkeeper were protected by this safeguard. Failure to pay, we admit, affords a prima facie case of breach of contract, and we would accordingly put the failed person in prison at the instance of any creditor; but if the creditor were unable to show a probable case of fraud, the debtor should obtain immediate liberation under the bankruptcy laws.

In fine, if it were permitted to us to express ourselves sententiously, we would say, Let this be the law. Let imprisonment for debt continue, but let the Judge in bankruptcy have power to grant liberation, unless there be suspicion of fraud, when he ought to be bound to hand the case over to a public prosecutor.

If a man has been guilty of fraud, let the criminal court punish him criminally, and let the Bankruptcy Court say that the man found guilty of fraud is incapable of trust, and of obtaining discharge.

Let all minor offences, such as gambling, reckless extravagance, wild speculation, improvidence, and undue delay in declaring insolvency, be dealt with in the Bankruptcy Court and punished, not by imprisonment, but by the delay or absolute refusal of discharge.

Let creditors be heard; but let the discharge or non-discharge rest with the Court alone.

We are aware that the Committee of the House of Commons has suggested that the dividend should, to a certain extent, regulate the discharge of the bankrupt; and we observe that a writer in the Economist recently suggested the following scale :-The debtor who pays 15s. per £ to be entitled to his discharge at once. after 3 years.

10s. per £, 6s. Sd. per £, under 6s. 8d. per £,

Any such scale is of course purely arbitrary. It is no doubt worthy of consideration, whether the effect of some such rule would not be to check reckless speculation, and lead to declarations of insolvency before the ruin of creditors is involved in that of their debtor, as so often occurs under the present law; and so far the scheme seems to be greatly preferable to that of Mr Moffatt and Lord Westbury. But where the Court has the means of disposing of each case on its

own merits, which it has in Scotland, and which it ought to have in England, we question the prudence of adopting any mere arbitrary

criterion.

THE YELVERTON DAMAGES CASE.

We will not be suspected of writing with any bias in favour of the side which prevailed in the recent trial. Throughout the progress of the Yelverton controversy we have pleaded the cause of the unfortunate lady, who has again sustained defeat on an issue collateral to that, the prosecution of which she seems to have made the settled purpose of her life. When the question was a personal one between her and the man whom she claimed as her husband, we did not hesitate, in presence of the prevailing diversity of opinion, to express our conviction that both the law and the justice of the case were upon her side; that in all her relations with Major Yelverton marriage and marriage only was in her mind, and in his mind also, and that his assumption of a different position was an after thought which occurred to him after the performance of acts which had brought him within the pale of legal obligation. These views the opinions of the majority of the Judges in the House of Lords have refused to entertain; and we cannot but regret that through an unwise pertinacity in prosecuting such collateral issues as that with the Saturday Review, Miss Longworth has been doing her best to convert her best friends into little more than lukewarm supporters.

But the case with the Saturday Review presents another, and, in all its public aspects, a much more important issue than any which this remarkable history has yet suggested; and in making it the subject of a few remarks at the present time, we will endeavour, as far as possible, to consider its bearings as a legal question, and to separate it from the disturbing elements with which it has been so largely intermingled.

From all that is known or reported of the manner in which the verdict was reached, it is not probable that the case will go far to convert sceptics in the efficacy of jury trial. The result is likely to be the other way. For, as a popular question, that is, with the public generally, and even among those in the profession who have not taken the pains to refer the grounds of action to the rules of law

by which they are controlled, there is no doubt a general impression that there was a miscarriage of justice on the occasion. The opinion of the English press has been almost universally expressed to the effect that the verdict of the jury was wrong; and if that view prevails in England, where, upon the marriage question, the judgment was more decidedly unfavourable to Miss Longworth than it was in this country, it is not to be wondered at that the same view should be adopted in Scotland. The objection that has been most generally urged is, that the verdict was contrary to evidence; and we understand that a new trial has been moved for on precisely the same ground.

That, apart from the question, whether the article complained of is a libel, and as such infers legal liability, much of the popular feeling is referable to the terms in which the article is couched, we think is very probable. And there is much in it with which we cannot and do not sympathize. The reference to the Lord Chancellor, for instance, is in the highest degree unbecoming, and unworthy of the position which the Saturday Review enjoys as an exponent of high and educated thought. As to the remaining passages which bear upon Miss Longworth, we do not hesitate, as matter of taste, to express the same opinion; just as we think from the point of view from which we have looked at the Yelverton case, that they are utterly mistaken and misjudged. But we hesitate to affirm that, according to the law of libel as it obtains in this country, and in general principle, they are identical-they ground a legal claim for slander. In commenting on the case of Miss Longworth, the reviewer had before him an almost incalculable mass of materials: the history of her life and character, so far as it was shadowed forth in her correspondence, the history of her connection with Major Yelverton, so far as it fell under the observation of witnesses, -his story of that connection, as he publicly unfolded it at the Irish trial, the whole proceedings at the trial,-the damaging interlocutor of Lord Ardmillan,—the favourable judgment of the Inner House,—the variety of opinion as that was manifested in the public press, the final proceedings in the Court of Appeal,-their result, and the renewed expression of public feeling. By means and out of these materials, the Saturday Reviewer undertook to say what in his opinion the character of Miss Longworth was; and it is not disputed that these materials having become public property, he was entitled to put them to any legitimate use he could. Whether he

did put them to a legitimate use, is the question which we have afterwards to consider. At present we refer to them only for the purpose of showing upon what widely dissimilar grounds the reviewer brought two parties into the same condemnation; for we venture to think that in the article the Lord Chancellor fares as badly as Miss Longworth. But in pronouncing judgment on the opinion which the Lord Chancellor delivered in Miss Longworth's case, the only consideration with which it was relevant for him to deal, was the sufficiency or insufficiency of the reasoning by which his conclusion was deduced. He was entitled to say that it was a weak judgment, careless of the facts, defective in argument, defective in law. But none of these things is said. The reviewer goes entirely out of the province in which he is entitled to pass judgment on the Chancellor, when he makes insinuations against his private character, under pretence of impeaching his judicial opinion. A distinction which the law recognises in this kind of libel is, as we will afterwards see, fitly illustrated by a comparison of these two

cases.

We have said enough in the preceding paragraph for the purposes of this discussion, in reference to the victory upon which the reviewer was commenting; and anything we have omitted is sufficiently in the knowledge of our readers. The general principles of the law of libel, notwithstanding all that has been said and is supposed to the contrary, are clear and explicit enough, at any rate in the law of Scotland. The difficulty that is felt in any case is not one of principle, but of application of principle to varying facts and circumstances, and arises from the fact that the question of feeling which is generally in issue, is not one that can be disposed of by any fixed and determinate rules. It is easy enough to understand the law of libel as a legal proposition, when it says that no man shall be held up to private ridicule, contempt, and scorn; but how difficult is it to say when that result has been established: how much more difficult to pronounce to what extent it has been established in one case more than in another. And while the general principle of law is clear, there is one thing having reference to the well-known doctrine of privilege which is clear also, that a public newspaper is in the eye of the law amenable to the same laws as a private individual. A private individual is not entitled to cast imputations on the moral character of another. Neither is a newspaper; and

VOL. X. NO. CIX.-JANUARY 1866.

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