Libel or no libel, is another question of this class, upon which the jury are required to exercise à very wide discretion. If the jury find that the writing contains an imputation injurious to a man in the way of his trade, or charges the commission of an act which is by law a crime, they need make no further inquiry, as the court will declare the rule of law to be that such a writing is a libel. But these are among the very few limitations which the law has imposed upon the discretion of the jury, and with these exceptions the inquiry is of the most general character, whether the writing contains "a contumely or reproach, published to the defamation of the government, of a magistrate, or of a private person." The legal and ordinary meanings are one and the same; Dr. Johnson says it is "a defamatory writing." Whether a writing is or is not "defamatory," or does or does not contain "a contumely to the defamation of any individual,” must depend upon the expressions used, and the idea which they are calculated to convey, and upon the different qualities of which a good character is composed, and the different modes of destroying it. How is it possible that such topics can come within the knowledge of the law? It would surely seem that with reference to the real principle of distinction between the respective provinces of judge and jury, libel was one of the last subjects upon which any controversy should have arisen, and that the spirit of party, love of power, hostility to the principle of trial by jury, or some feelings of a similar character, must have animated the great majority of persons who were anxious to vest the whole question in the arbitrary discretion of the judge.

The inquiry into the negligence of a carrier is equally wide. The law says, that he is not answerable for those goods which the bailor does not tell him beforehand that he has put into his care. The degree of attention which he has paid to the goods must depend upon the sort of place in which he left them, the chances which he might reasonably apprehend, and the provision against them which he had the foresight and prudence to make. These are subjects on which no knowledge of the law can give assistance, and therefore no question is submitted to the court.

1 Com. Dig." Libel.".

Respecting the negligence of a magistrate, " the question is," says Mr. Justice Littledale, "whether the defendant did all that he knew was in his power, and which would be expected from a man of ordinary prudence, firmness, and activity, to suppress these evils." Here, again, the law puts no limitation upon the discretion of the jury; the subjects of inquiry are wholly unconnected with law, and can be decided only by recourse to their general knowledge of the world.

It may be worth while to give one or two instances in which the question has been confined within narrower limits, the field of inquiry has been, as it were, hedged in, and the juryman has been forbidden to tread the path which was formerly open to him. The law formerly was, that the notice of the dishonour of a bill of exchange should be given within reasonable time; it must now be given by the next day's post. The inquiry, which was formerly of a general character, is now confined to the single question, whether the notice was sent by the next day's post. So far, however, as respects the principle of distinction, there is no variation; for in both instances the jury inquire into just as much as the law has not previously decided.

Many rules have been laid down, defining the amount of provocation by which the charge of murder may be reduced to manslaughter. No provocation by indecent words, by ridicule, by sneering gestures, by the refusal of a servant to obey his master's commands, will in law be a justification even for a blow: the provocation of a blow, if time has intervened in which the temper of ordinary men would be assuaged, will be no legal justification for the use of an offensive weapon. Thus, in cases of this kind, the jury are only required to form their opinion whether there was sufficient momentary irritation, pain in consequence of a blow received, or reasonable apprehension of personal danger, to justify an act of aggression. If no legal rules had been established, the inquiry would have been far more extensive; whether the insults offered by words, or sneers, or resistance of due authority, could be considered a sufficient excuse for the act of violence committed.

We think, then, that there are three distinct classes of sub1 Rex v. Pinney, 5 C. & P. 270.

jects submitted to our courts of justice, and that reason and authority coincide in allotting them to the several parts of the tribunal. First, there are those upon which a rule of law exists, namely, questions of law: secondly, those upon which no rule of law exists, and in which a fact is to be ascertained, commonly called questions of fact: thirdly, those upon which no rule of law exists, but in which no fact is to be ascertained. It seems to us that these last ought not to be termed questions of fact, but questions of quality or of opinion. The distinction may always be found in the major premiss of the argument, which either is a rule of law, or, not being a rule of law, predicates the existence of some fact, or attributes some quality. To take an instance in which the several major premises may be compared with one another, we will suppose the inquiry to be into the credibility of a witness. If he is proved to have a direct pecuniary interest in the verdict, the major premiss of the argument contains the rule of law that "no person having a direct interest in the verdict is to be admitted," and the question is decided by the court. If he is proved to be brother of one party, or from other circumstances to have so much feeling on one side as prevents a reasonable man from believing him, then the major premiss contains the rule derived from experience, that "no person under such circumstances is to be believed;" the question is for the jury, and they refuse faith to the testimony: they have, however, decided upon a question of quality not of fact, "that the witness is not worthy of credit." The previous part of their inquiry, that the witness was a brother to the party, was of a third description, a question of fact, and so they might have found any other fact, that he had received a bribe, or that he had himself been a principal or party.

ART. IV.-RETROSPECTIVE OPERATION OF THE BANKRUPT ACT.

We took occasion, in a review of the late Professor Park's Juridical Letters, in a former volume,1 to discuss the necessity of transitive laws, to obviate the intermediate difficulties, if we may so express them, arising from extensive statutory changes in any part of our legal system; and we quoted from the learned author examples of the arbitrary and jarring constructions which the Courts had already been obliged to put upon the various enactments of the new Bankrupt Act, framed as it had been without any provision as to its retrospective or non-retrospective applications to transactions originating under the abrogated law. Although more than eight years have now elapsed since this statute came into complete operation, fresh questions of this nature are still occurring upon it, and giving birth to apparently interminable litigation and expense. A case very recently determined having at length supplied, so far as one of the most important enactments of the statute is concerned, a definite rule of interpretation, it seems a fit opportunity for presenting to our readers a concise account of the successive decisions on this subject, since we brought it last under their notice.

Cuming v. Welsford (6 Bingh. 502) arose on the much disputed section 108. Before the statute came into operation, a creditor of the bankrupt obtained a final judgment by nil dicit in an action of assumpsit, on which he sued out execution after the passing of the act. The Court of Common Pleas held the case to be within the restrictive proviso of sect. 108. The words " any judgment obtained by default, confession, or nil dicit," described, they said, as well a judgment obtained before as after the passing of the statute; and they inferred from the use of the words of a future signification immediately before" provided that no creditor who

1 Vol. V. p. 174.

2 See also a more detailed statement of those cases in Art. IV. of our seventh Number.

shall sue out execution, &c."-that the legislature, if they had intended also to restrict the operation of the enactment to future judgments, would have continued to employ terms referring only to the future, and have said " any judgment to be obtained," &c. The contrary construction, it was added, would have given protection to all executions on secret warrants of attorney whereon judgment had been signed before the 1st Sept. 1825, for which there seemed to be no reason whatever. There might seem, perhaps, to be as little reason for withdrawing that protection with which the previous law had invested them, unless the legislature has in plain terms directed it.

All the subsequent cases have arisen on the construction of the 127th section, the terms of which are as follow:-" If any person who shall have been discharged by such certificate as aforesaid, or who shall have compounded with his creditors, or who shall have been discharged by any insolvent act, shall be or become bankrupt, and have obtained or shall hereafter obtain such certificate as aforesaid, unless his estate shall produce, after all charges, sufficient to pay every creditor under the commission fifteen shillings in the pound, such certificate shall only protect his person from arrest and imprisonment, but his future estate and effects shall vest in the assignees under the said commission, who shall be entitled to seize the same in like manner as they might have seized property of which the bankrupt was possessed at the issuing of the commission." The former acts, instead of absolutely vesting the future effects, under such circumstances, in the assignees, had only made them liable to the creditors.'

In Robertson v. Score (3 B. & Adol. 338), there were two commissions, of which the first issued in May, and the certificate was obtained in July, 1823; the second (under which the bankrupt paid less than fifteen shillings in the pound) issued in August 1826, and the certificate was granted in the following November. The question was whether the second certificate barred a debt contracted in June 1826. It was contended for the bankrupt, that the words "such certi ficate as aforesaid" must be restricted to mean a certificate taking effect under the new act, and could not apply to one 1 See Law Mag. Vol. IV. P. 127.