The Sun.
London, England, 1865-11-25 00:00:00

SPIRIT OF THE PUBLIC JOURNALS.

TIMES.—The Head Centre of all the Fenians of Ire-
land, Mr. Jas. Stephens, alias Power, who was ap-
prehended only a fortnight ago, has just escaped from
Richmond Prison, probably by the connivance of
some of the prison officials. As the Government
has offered £l,OOO for his re-capture and £3OO more
for information, he will probably be soon again in
custody; but the event is likely to cast suspicion on
the fidelity of an important body of men, and to in-
crease the caution with which the Irish Government
deals with these troublesome conspirators. Stephens,
who has been raised by the Fenian authorities, or
has raised himself, to the office and dignity of chief
of the Republican plotters, was, we believe, origi-
nally connected with Mr. Smith O'Brien, and learnt
treason in the school of the rebels of 1848. He has,
however, only emerged into history since the scheme
for making Ireland independent by American aid
has been formed on the other side of the ocean. As
a man endowed with more than the usual Fenian
education, he took the lead, and attained at once
the high position which, unless he succeeds in mak-
ing his escape from Ireland altogether, is likely to
give him an unpleasant pre-eminence in punishment.
But for the present he seems to have baffled
justice. While the lawyers of the Queen's Bench
were discussing the question of a certiorari at a
length which encumbers our columns, Mr. James
Stephens moved a more effective certiorari himself,
and postponed his trial before the Special Com-
mission by the simple expedient of breaking prison.
We have as yet no means of knowing how he
made his escape, and how far any one at the
Richmond Prison is connected with it. But Mr.
Stephens is a man of such ability and resource that
he would have no difficulty in taking advantage
of any favourite disposition on the part of a turnkey,
whether it arose from political sympathy or readi-
ness to pocket a bribe. The Fenian Exchequer has
been so flourishing, owing to the prosperity and
enthusiasm of the brethren across the Atlantic, that
any reasonable number of sovereigns would, no
doubt, be forthcoming. It now remains for Mr.
Stephens, having made his escape, to avoid a second
capture. The reward offered for his apprehension
will make the chase after him very hot, for it is not
often that in any country a prize of £l,OOO is held
up before the eyes of the police. But, to judge
from his past exploits, he is quite capable of giving
his pursuers some trouble. It is related that on
the night of the seizure of the Irish People he
changed his appearance with peculiar readiness, and,
procuring a pair of crutches, made his way to a
place of shelter. This was Fairfield-house, Sandy-
mount, which he occupied under the name of James
Herbert. It had been furnished with much elegance,
no doubt out of Fenian funds • the garden and
greenhouse were complete, and il2 worth of plants
were purchased from a neighbouring nursery on the
very day of the capture. The preparations of the
police for taking him and his companions were very
elaborate, but it turned out that. the work was much
easier than they expected. They entered well
armed, with pistols in their hands, but Stephens
thought fit to submit quietly, and was arrested with
Miekham, Duffy, and Brophy, who were all in bed
at the time. The work has now to be done over
again as far as Stephens is concerned. He has pro-
bably not got far from Dublin ; indeed, the most
reasonable supposition is that he is lying hid some-
where in the city, and will there continue until he
thinks the storm of pursuit is blown over. It is
superfluous to suggest that there should be a strict
inquiry into the mode of his escape, and the alleged
complicity of some one in the prison. Such an
offence by a person in the employ of Government
is most serious, and should be punished with all

severity.
Post—The Court of Queen's Bench, as might
have been expected, has given judgment for the
Crown in the matter of Mr. Churchward's Petition

of Right. The members of the court were unani
inous, and we may therefore assume that the poin
. _

at issue has now been finally determined. The judg-
ment delivered by the Court will be seen to have
turned almost entirely on the particular interpreta-
tion given to the contract which furnished the basis
of the petitioner's suit, and the question of consti-
tutional law which would have been brought into
prominent relief had the contract-been differently
worded did not therefore call for solution. The

public are interested not so much in learning whe-
ther, under the terms of a certain agreement, the
person aggrieved is entitled to seek compensation
from the Executive for the loss which he has, sus-
tained, but whether under a contract, however
worded, which is entered into on behalf of the
Crown, and the consideration-money of which is to
be voted by Parliament, a claim for damages caused
by the rescinding of such contract can be success-
fully maintained. Now, it cannot be said that this
point has been determined by the judgment deli-
vered yesterday in the Court of Queen's Bench, and
although Mr. Churchward is held to be precluded
from claiming compensation because the authorities
entrusted the carriage of the mails between Dover
and the Continent to some one else, after Parlia-
ment had refused to appropriate any money for
payment to him under the terms of his contract, non
constat that under different circumstances he
might not have succeeded in establishing his claim.
On the one hand, contractors with Government
are entitled to know whether, even although their
remuneration is made conditional on the approval
of Parliament, they are not justified in seeking
compensation for the damage occasioned by the
repudiation of their contracts ; and, on the other,
the public may justly feel curious as to the liability
which may be cast• upon them of making large pay-
ments to contractors in the form of damages which
they cannot be compelled to pay as a subsidy. In
the case which has just been argued and decided
at Westminster, it cannot, however, be said that
either the rights of contractors or the liability of
the public have been ascertained. The decision has
mainly turned on the terms of Mr. Churchward's
contract with the Adniiralty, and it will not, there-
fore, constitute so valuable a precedent as might
have been expected. The essential elements .of the
agreement entered into between Mr. Churchward
and the Government in April, 1859, were that the
former should supply certain steamers for the car-
riage of the mails between Dover and the ports of
Calais and Ostend, and that the latter should pay
to Mr. Churchward an annual sum of £lB,OOO out
of moneys to be provided by Parliament. In June,
1863, the House of Commons passed a resolution
that no further moneys should be paid to Mr.
Churchward under his contract, and that resolution
was subsequently embodied in the Appropriation
Act passed at the close of the same session. The
Government thereupon terminated the contract,
sent the mails to the Continent by other steamers
than those of Mr. Churchward, and paid that gen-
tleman up to the date fixed in the Appropriation
Act. Under these circumstances, the contractor sues
the Crown for damages which he sustained by the
rescission of the contract, and in effect says :
" Although•l cannot call on you to pay the subsidy
agreed upon, because that is made conditional on
the votes of Parliament, still I am entitled to ask
you to continue to send the mails by my steamers.
By so doing I shall be enabled to retain that pas-
senger traffic which I at present possess, and shall
besides be in a position to ask Parliament to remu-
nerate me for services rendered." The whole ques-
tion, therefore, raised for the decision of the court
was, whether an engagement on the part of the
Lords of the Admiralty to entrust the carriage of
the mails to Mr. Churchward could be implied from
the terms of the contract on which the suppliant
rested his case. That no such agreement was ex-
pressed was conceded by Mr. Churchward's counsel;
and that it was not implied is, we think, shown to
demonstration in the elaborate judgment delivered
by the Lord Chief Justice. The general rule of
law in the interpretation of contracts is that no
engagement on the part of any of the contracting
parties will be implied contrary to the general tenor
of the agreement. Now, it must be manifest to
every one that the Government, in contracting with
Mr. Churchward, had no other object in view than
to secure the services of efficient steamers for the
conveyance of the mails, so long or under such cir-
cumstances as they might deem it expedient to use
such steamers. They never intended to preclude
themselves from transmitting the mails by vessels
of a different class in time of war, or making such
other arrangements as might be deemed essential
for the public service. The fair reading of the
contract, therefore, is that the Admiralty simply
engaged themselves to employ Mr. Churchward's
vessels for the transmission of mails whenever they
should require them ; in any case Mr. Churchward
being paid £lB,OOO a year, provided that sum was
appropriated for the purpose by Parliament.
And the evil consequences of a different rendering
of the contract are pointed out by the Lord
Chief Justice as furnishing still more conclusive
proof that the construction contended for by the
suppliant could not be sustained. If Mr. Church.
, ward had been employed by the Government, not-

withstanding therefusalof Parliament to appropriate
any sums of money for his payment, he would, it is
true, have been in a better position to apply to Par-
liament for remuneration than by merely showing
himself ready and willing to perform his contract.
But the result would have been that the Govern-
ment would have been acting in direct antagonism
to the Legislature. The House of Commons, on the
one side, as the guardian of the public purse, would
by formal resolution have declared that a certain in-
dividual should not any longer be paid for services
which he had been in the habit of rendering ; whilst,
on the other, the Government would have continued
to require at his hands the discharge of those duties,
knowing their inability to offer in return any re-
muneration. To adopt such a course would, as the
Chief Justice said, have been derogatory to the
Crown. It cannot, therefore, be seriously urged
that the Government were obliged under their con-
tract to act in a manner which wovld not only have
brought them into collision with Parliament, but
would have exposed them to well-merited contempt.
But the refusal of the Admiralty to act thus, in
truth, furnished the sole ground on which the peti-
tioner based his claim against the Crown. Whether
a Petition of Right may not lie for a breach of con-
tract by the Government the court was not called
upon to decide, though the balance of opinion
appears to be in favour of its doing so ; but in the
case under consideration it was not necessary to
determine that point.