to the cases of taking, as it were, special possession of funds in a manner never contemplated by the creator of the trust, excludes some cases of very culpable conduct, and the one that immediately occurs is suggested by certain late transactions in the mercantile world. It appears that individuals engaged in mercantile speculations, became directors of a Banking Company, and obtained, through their influence in that capacity, large advances of money, for which they gave very inadequate security; so that, on the failure of their schemes, great loss fell upon the Bank, which became insolvent, or could only meet the demands of the depositors by calling upon the shareholders to come forward as the real debtors. That the greatest blame is in these cases imputable to the managing directors as guilty of gross negligence, in suffering any of their colleagues thus to obtain a large portion of the funds, cannot be doubted. That the conduct of those colleagues was culpable in the highest degree, is equally unquestionable. But it may be doubted, whether there is a sufficient difference between their case and that of persons obtaining money or credit upon a general though groundless reputation of their solvency, to warrant our holding the breach of duty in those directors a criminal act, and punishable as such. It is not denied that the whole circumstances of their situation when they obtained, or, as it is otherwise said, gave themselves the advances of money, might be brought before the court which tried them, if indicted for the offence, and that it might be proved to be impossible they should have honestly believed themselves solvent. Still the difference between this and the ordinary cases of concealed difficulties, is probably too slight to warrant a penal enactment in the one case, which no one has proposed in the other. There may very possibly be good grounds for extending the provisions to cases where there has been no such confidence reposed as that which renders the trustee peculiarly culpable; but the amendment suggested of the criminal law might advantageously be confined, in the first instance, to trustees, there being no possibility in their case of urging that the creditor had been negligent, and had advanced his money, or furnished his goods without making due inquiry, and had himself to blame for the loss. But it may further be considered better, even in the case of trustees, to confine, at

least in the first instance, the new law to an unauthorized appropriation, by changing the investment of the funds; in a word, to extend the Banker's Act to the case of all trustees, and to visit other breaches of trust with punishment only where actual loss had been sustained. It must not be forgotten that we are now enacting a very great change in the law, and it seems consistent, with due discretion, to make that change gradually.

If, however, it be deemed better to attempt a more complete, and, we must admit, a more consistent measure at once, the course to be pursued is plain enough. All using whatever of trust funds, by the trustee for his own behoof, must be treated as a crime, if it be wilfully and deliberately done. The proof that the risk run was either extremely small, or what in common parlance might be held none at all, must be rejected altogether as a defence, and only considered in mitigation of punishment. Even the consent of the c. q. t. should only be regarded in the same light, because it is the trustee's first duty to act according to the letter of the rule laid down by the creator of the trust; and certainly, as regards the protection of reversionary interests —perhaps, even, as regards those of the party immediately concerned he does a wrongful act by departing from that rule.

The next difficulty which presents itself arises from the unfortunate rule of law which prevents witnesses, or parties, from being compelled to answer questions whereby they may criminate themselves. We have in this Journal frequently exposed the absurdity and the monstrous consequences of this doctrine; and we conceive that the course we have recommended in the general case, may be taken with respect to trustees called upon, either at law or in equity, to give their answers touching the conduct of their trusts. The only material provision of Lord Brougham's Evidence and Procedure Bill, 1853, which was not adopted in the Common Law Procedure Act, removed the protection as to self-crimination, but prevented the answer given from being used in evidence against the person so swearing, in any case except a prosecution for perjury assigned upon that answer. We entered so fully into the discussion of this question in all its points upon a former occasion (L. R., vol. xviii. p. 178), that we shall now only refer the reader to the arguments there adduced. But with a view

to the present subject, it is enough to note that the same provision against the trustee's answer being used in a prosecution for breach of trust, would seem sufficient to remove the objection, now under consideration, against the proposed extension of the Criminal Law.

The only other difficulty which we need to consider, relates to the alarm that may very probably be given, both to trustees who have accepted, and to persons not clothed with the judiciary character. In many cases, the former might be led to resign their office, and the latter might be deterred from undertaking it. But two remedies for these evils at once present themselves: an abrogation of the rule-another peculiarity in the law of England-that trustees shall receive no remuneration for the trouble they undergo and the risk they encounter; and the providing a body of competent persons to act as official trustees whenever any party creating a trust finds, or apprehends he shall find, a difficulty in obtaining the consent of persons to accept the trusteeship. There can be no good reason for maintaining the rule against payment for trouble to a trustee, any more than there ever has been a reason alleged against paying an executor; and where the trustee did not accept under either a prohibition of payment, or an agreement to act gratuitously, the court might safely and usefully remunerate him for his trouble. To the appointment of official trustees there is every inducement, from the signal success which has attended the establishment of official assignees in bankruptcy. Indeed, if the name of that court were changed-if, for example, it were called a court of commercial jurisdiction, and were clothed with a certain authority in superintending the execution of trusts-it could furnish from a competent staff of its officers such trustees as might in any case thus be required by the maker of a trust, or, after his decease, by those interested, supposing him to have left no directions precluding such a measure. The same court might indeed be of the greatest service in other matters connected with trusts; and we have always understood that when it was established, in 1833, this was intended, nay, that the details of a plan for this purpose had been considered. It has been said that these were in the hands of Mr. Vizard, then secretary of bankrupts, and still one of the honorary office-bearers of the Law Amendment Society.

ART. XIII.-LORD COCKBURN AND THE
EDINBURGH REVIEW.

THERE has appeared, in the last number of the Edinburgh Review, a paper on which we shall make one or two remarks, because it refers to the former article in this Journal upon the same subject. The good folks who have produced this defence of Lord Cockburn's book, justly consider that though the avowed personal friends and political partisans of the author, and having some connection with the publication (see, among other passages, p. 230, where an extract from an unpublished MS. is given), they are yet clothed in the garb of critics, and, as it were, exercising a judicial office. Therefore they have deemed it the best qualification for performing its duties to lose their temper; and, accordingly, we have seldom happened to read any thing that more plainly indicates its having been written in a great passion. We crave their forgiveness, if we at once confess our inability to get angry with them: knowing, however, full well, what additional provocation we are thus giving. It was Lord Wellesley we think, who, when bitterly attacked, apologised for being in good-humour, only wishing his noble friend had not been quite so peevish.

Possibly it may soothe the critics who feel so strongly, and we at once admit so properly, for their deceased

friend, if we remind them that we did not once, but repeatedly, render ample justice to the character of Lord Cockburn in all respects; "excellent intrinsic qualities; an amiable disposition; a strictly honourable mind; distinguished abilities as an advocate; entire political purity and independence; not wanting in party zeal, yet kept by his good judgment from the proverbial excesses of recent conversion;" again, "No one can doubt his talents and information, least of all, his strict integrity." Such are some of our tributes to his merit; and of the book in which the reviewers, by advertising, in a somewhat unusual fashion, the number of copies printed, as part of the title of the article, would seem to take a great interest, we said what they really should have been thankful for-that "it would

have many readers, and would deserve to have them." Then, what have we laid to its charge? That without the least design to misrepresent, the author from party prejudice, or from his habit of dealing in anecdotes, had set down in writing the stories with which he was wont to amuse people in society, and that he had not only caricatured many persons, but had, partly from credulity, let his fancy or his party feelings mislead him; so that, how amusing soever his pages may be, they are very unsafe to be relied on as a history of the times in many material particulars. After the article appeared in our last number but one, many communications reached us, and some were made to other quarters, proceeding it should seem from the friends or connections of the persons assailed in the book. We had no reason whatever to question the statements thus made; but the internal evidence which the work itself affords, is quite sufficient to satisfy us that we had justly estimated its character, more especially when coupled with things universally known, which every one must have remembered, and which Lord C. was only led to forget or to disregard from the misleading influences under which he wrote.

The reviewers profess their inability to comprehend for what reason the attack, as they call it, has been made on Lord Cockburn and his narrative. Perhaps they will so far calm themselves as to consider that the work was assumed, from the manner of its appearing, to have been left for publication by the author. If this be not the case, not a word is to be said against him; the blame, whatever it is, falls upon his representatives alone. But we were called upon to consider how far a judge ought to have left for publication a book holding up some judges, his predecessors, to excessive ridicule, others to execration. We regard this as an extremely injudicious, an altogether indiscreet proceeding, and one which made it an indispensable duty that he should have taken the utmost possible care in ascertaining the correctness of his statements, especially where they were of an inculpatory kind. But whether the author or his representatives were the publishers, it was absolutely necessary to examine the evidence afforded by the work of the truth of these matters, no longer related for the entertainment of society, but recorded as