The Sun.
London, England, 1867-01-24 00:00:00

RAILWAY BILLS.

Yesterday the examiners on standing orders held
sittings at the House of Commons. Before Mr.
Frere the following unopposed Bill 4 were examined
and passed :—The Rhymney (New Lines, &c.),
Thames Navigation, Maidstone and Ashford, and
the South Eastern. The Bill of the Coventry and
Arley, with a branch to Bedworth, was withdrawn.
The opposed bill of the Metropolitan Tramways was
not passed. Before Mr. Palgrave the following un-
opposed bills were passed, as having complied with
the standing orders :—The Sevenoaks, Maidstone,
and Tunbridge. The bills of the Bradford Canal
Navigation and Leeds and Liverpool Canal were
postponed until Monday.

INDIAN CARRYING (LIMITED.)
The annual general meeting of this company was
held yesterday, at the 'office, South-street, Fins-
bury-square ; Sir Macdonald Stephenson in the
chair.

The report, an abstract of which has appeared in
The Sun, was taken as read.

The CHAIRMAN, in moving the adoption of the
report, said that in common with almost every in-
dustrial enterprise, the Indian Carrying Company
had suffered to the extent, of a limitation of the
dividend for the year ending the 30th of June last
to 3 per cent., or only half what had been paid
uninterruptedly from the commencement. The
losses in Bombay, which were so fully explained at
the last meeting, had occasioned this reduction in
the year's dividend ; but the closing of the Bombay
agency, which had now been effected since Septem-
ber last, would remove any apprehension of further
losses, and enable the company to realise the fruits
of their more successful exertions in the other Pre-
sidencies. The block in the traffic which occurred
on the East Indian Railway should be attributed to
the imperfect utilisation of the rolling stock in
hand, and not to the insufficiency of stock sent out,
as explained by the chairman of the East Indian
Railway at their late meeting. It was to be hoped
that, in the interests of both companies, the future
co-operation would be more active and earnest than
heretofore. They had a common object, and should
pursue a policy of co-opeiation. The short credits
which were now made imperative in India involved
the necessity for having a large floating capital in the
hands of the managers, and at a future and more
opportune period it would be desirable to act upon
the authority the board had received some time since
to make a small addition to the capital for the pur-
pose, offering it, of course, rateably to the share-
holders. With the close of the sadly memorable year
which had just passed away it was hoped that the
wide-spread suffering and heavy losses among com-
mercial undertakings would also have terminated,
and give place to a sounder state of trade, with a
renewal df confidence in those enterprises which had
proved they were entitled to it. The Indian Carry-
ing Company had much to contend with. It had
paid regular dividends of 6 per cent. from the com-
mencement, and though only dividing, 3 per cent.
for the last year, might confidently look forward to
future years of increased prosperity with the expe-
rience already obtained.

Mr. J. WALKER seconded the motion for the
adoption of the report.
A SIIAREIIOLDER thought the ordinary meetings
of the company should in future be held earlier.
The CHAIRMAN said the difficulty was to get the
accounts earlier from the agencies all over India, but
it was a point with the directors to accomplish.

Mr. PHlLrorr suggested a small call to provide
additional floating capital, but said he should object
to raising more than the £lOO,OOO capital unless the
usual risks in carrying on business in India could
be overcome.

The report was unanimously adopted ; Mr. P. D.
Hadow and Mr. J. Walker, the retiring directors,
were re-elected ; and also Mr. J. E. Coleman and
Mr. G. Engstrom, the retiring auditors, the remu-
neration being fixed at 15 guineas and 10 guineas
respectively for the ensuing year.
Theyroceedings concluded with a vote of thanks
to the chairman and directors.

SPIRIT OF THE PUBLIC JOURNALS.

Tim Es.— -The decision yesterday pronounced in
the Court of Queen's Bench, in the case of " Bryant
v. Foot," may be attended, as Justice Blackburn
remarked, with some very startling results. It was
an action by the rector of a parish in Buckingham-
shire to recover a marriage fee of 13s. The ground
upon which he claimed was, of course, that of pre-
scriptive right. It was proved that a similar fee had
been paid in the parish since 1808 ; but as to the
custom before that time no direct evidence was ad-
duced on either side. It was further allowed by
both sides that the existence of a custom for fifty
years afforded in law a prima fade presumption of
its having existed from time immemorial—a pre-
sumption, however, which might be rebutted by
sufficient evidence to the -contrary. The plaintiff
argued that, as there was no direct evidence to the
contrary, the presumption must stand, and that the
prescriptive right was established. It was argued
on the other side that the amount of the fee was too
great to have been either asked or paid in former
times—in legal language it was " rank ;" and thus
the custom could not have existed from time
immemorial. The Court held, by a majority of
three to one, that the objection was fatal, and,
that the fee could not be legally claimed. The result
is not only to deprive the rector of Horton of any
legal right to the portion of his income which
he may derive from marriage fees, but to place a
great number of other persons in the same uncom-
fortable position. Except in cases where there
may be a special enactment, all clergymen would
seem to be deprived of any legal right to the cus-
tomary marriage fees. The same rule will apply, it
may be presumed, to almost all other church fees ;
nor will clergymen be the only victims. This case
was immediately followed by another in which a
claim was alleged to the customary toll or due of a
shilling for every cartload of vegetables brought
into Cheltenham market. The evidence was of the
same character, and the case was, of course, simi-
larly decided. Carts will be able to enter Chel-
tenham market for the future without paying a
shilling, and we hope the inhabitants of Chelten-
ham will get their vegetables cheaper. Here,
too, the same rule will apply to many similar cases,
and numberless customary tolls are deprived of any
legal right. Mr. Justice Blackburn seems to doubt
whether the Corporation' of the City of London will
be able to maintain its duties upon corn, coal, and
oysters. Until recently many payments in Courts
of Justice depended solely on the presumption that
they were ancient fees, and some such payments
probably exist still. It follows that they had no
legal sanction ; and if any such still exist, they are
now deprived of legal authority. These are cer-
tainly, as Mr. Justice Blackburn described them,
startling results, and it is difficult to see how far
they may extend. Still more strange are the legal
principles from which these consequences have fol-
lowed, and which are now established by the autho-
rity of the Court of Queen's Bench. Our readers
are aware that the term " legal memory" extends to
the reign of Richard I. Now, for a custom to exist
by prescriptive right it must be theoretically proved
that it has existed since the time of legal memory ;
in other words, it must be proved to have existed in
the reign of Richard I. That, at this present day,
in the year 1867, is the law of England. There is
no country which is more dependent upon prescrip-
tion, or more overriden by custom ; but it is, not-
withstanding, the law that, with certain special ex-
ceptions, no prescription whatever is legally valid
unless it dates from the reign of Richard I. Of
course, in the more important circumstances, so

absurd a law has always been rendered practically
innocuous by legislation. With regard to real pro-
perty, the difficulty has ceased since the reign of
Henry VIII. By an Act passed in that reign a
definite number of years was assigned after which
it should be impossible to recover a claim. But in
all other matters the rule remained that usage must
have existed since the time of Richard I. It is
obvious that if such a rule had been strictly applied,
no form of possession would have been secure for a
year, except that of real estate or that by definite
grant. The process by which the Judges eluded the
difficulty is singularly characteristic. They first laid
down what the Chief Justice calls " the somewhat
startling rule" that from the usage of a lifetime
the presumption arose that a similar usage had ex-
isted from a remote antiquity. Next, as it could
not but happen that in the case of many private
rights such a presumption was impossible, " judicial
astuteness had recourse to the questionable theory
of lost grants." Juries were told that from usage
within living memory they might presume a grant
or deed to have existed, but to have been lost.
" Next, they were recommended to make such a
presumption ; and lastly, as the final consummation
of judicial legislation, it was held that a jury should
be told, not only that they might, but that they
ought, and were bound, to presume the existence of
such a lost grant, though neither Judge nor jury,
nor any one else, had the shadow of a belief that
any such instrument had ever really existed." At
length, in the reign of William IV., or after another
three centuries, the Legislature again intervened,
and in respect of real property " and certain speci-
fied easements" fixed certain periods of possession
or enjoyment as establishing prescriptive rights ;
but " with regard to all other prescriptive rights or
customs, not pravided for by statutory enactments,
the law remains as before." Our readers are now
in a position to recognise the point upon which the
Court was divided. The doctrine of presumptions
unquestionably amounts to so much as this—that
from a usage or custom of perhaps only 20 years
it may be presumed that the usage or custom
has existed since the time of legal memory, how-
ever improbable this may be. Nothing could re-
but the presumption except proof, either as a
matter of fact, that the custom did not exist, or
that it was impossible it should exist. On the
latter principle, in the case of tithes, the amount of
a claim had been admitted as sufficient evidence
against it. There was no difficulty in proving a
similar impossibility in the present case. Consider-
ing that, in those days, the price of a bull was
45., of a cow the same, of a plough-horse the same,
of a sheep with fine wool 10d., of a sheep with
coarse wool 6d., of a sow Is., and of a boar is.,
it is certainly ab'surd to suppose that agricultural
labourers paid 13s. to get married. Mr. Justice
Blackburn was the dissentient judge, and a great
part of his judgment consisted of ingenious special
pleading, to show that we do not know the exact
value of money in those days, and that it is quite
possible the clergy may have driven hard bargains
in the reign of Richard I. But he substantially
confessed that, if the question were reduced to one
of simple fact, it must be admitted to be impossible
that such a payment should have been made for
marriages in the reign of Richard I. ; and he
seemed to wish, therefore, to carry the convenient
doctrine of ,presumptions one step further. He
thought it might be enough if it were made out
that the custom was for a reasonable fee, and thOt
the customary fee at the present day was a reason-
able one. At all events, he urged that the case
of the tithes was the only one in which the amount
of the fee was itself considered sufficient evidence
against a claim, and he wou!d have laid it down
that in all other cases the largeness of a customary
payment is not alone enough to rebut the presump-
tion of legal origin. The argument of the other
three Judges appears, however, conclusive against
this well-intentioned reasoning. It was all very
well, • they said, to presume the existence of a
custom in the face of improbabilities, however
great ; but it is another thing to make the
presumption in the face of an absolute impossi-
bility. This was too much even for a legal con-
science, and the ingenious contention of legal
fictions could, therefore, be carried no further. The
Judges have struggled against the law successfully
for several centuries, but they are. at length fairly
beaten. There are few who will not share the
Opinion of the Chief Justice, that a law which thus
"requires prescription or custom to be carried back
for a period of nearly 700 years is a bad and a mis-
chievous law, and one which is discreditable to us
as a civilised and enlightened people." But the
course of legislation by which the law was brought
into this state is not less characteristic than the law.
itself. Our ancestors persistently refused to recog-
nise the creation of a right to property by
virtue of mere prescription or usage. Even when
a species of prescription was admitted with re-
spect to real property, it was only by an indirect
method. It was not enacted that after possession
for a given number of years the right of property
should be acquired, but only that the adverse claim-
ant should be debarred from prosecuting his suit.
But, when this was done, our ancestors did not
name a certain number of years after which posses-
sion shoUld pass into a right, but fixed a known date
as the point of time from which the limitation should
run. Consequently, the period of limitation varied
from year to year. With each year it became longer,
and, of course, with every addition to the length of
the period the inconvenience increased. With a
view, perhaps, to remedy this inconvenience, the
date from which the period of limitation ran was
altered from time to time. At one time the date
fixed was that of Henry I. In the reign of Henry
U. it was altered to that of Henry 11. ; and, lastly,
in the reign of Edward I. it was altered to that of
Richard I. There, for some inscrutable reason, it
has remained fixed ever since. Our ancestors seem
to have modified the inconvenience of their prin-
ciples by constant adjustments. We have carefully
retained the principles and the original arrange-
ments, but have omitted the adjustments. It is
very like the story of rotten boroughs. By the in-
genuity of our judges we have hitherto escaped
without much practical inconvenience, and, no
doubt, even these anomalies themselves have Leen
turned to good account ; but we have now come to
a dead-lock. The Legislature must at last intervene
to solve the difficulty and to place the doctrine of
prescription upon a sounder footing ; and it is to be
hoped this will be done at once. When a Chief
Justice, in his place on the Bench, remonstrates
against " the vice and badness of the law" which he
is required to administer, it is time that some com-
prehensive amendment was introduced.
HERALD.---The important speech made by Prince
Hohenlohe in the Bavarian Chamber of Deputies,
not only has to be read three or four times before
its complete drift can be mastered, but it. must be
perused in the full light and recollection of the re-
volution which took place in Germany last summer.
The very first sentence of the Prince's address gives
the key to all that follows, though at first sight it
seems to be strangely unconnected with the declara-
tions which it introduces. " The dissolution of the
Confederation, and Austria's exclusion from it,"
says the Bavarian Minister for Foreign Affairs,
"have endangered the situation of the middle states."
What the Prince would have said had he been speak-
ing nothing but his own mind and that of most of
his hearers,lwas that those events bad endangered
the situation of Bavaria. From the time that it
was erected into a kingdom by Napoleon in 1805,
and maintained in its new dignity by the allies in
1815, that little thriving state has displayed the
keenest and most watchful regard for its own inte-
rests. Its position as the third, but only the third,
most powerful member of the old German Confede-
ration, made it at once both ambitious and timid.
But whenever caution and love of aggrandisement
are found united it is the latter quality which shows
itself most in times of peace ; but the former which
preponderates in time of war, and at the moment
for decided action. There is, unfortunately, but
too. much ground for believing that, at the com-
mencement of the conflict between Prussia and Aus-
tria, Bavaria sought to obtain from the latter power
the promise of certain advantages at the cost of the
neighbouring South German States as the price of
her siding with the House of Hapsburg. These
somewhat treacherous advances came to nothing,
owing perhaps to Austria's good faith ; and one of
the consequences was that the Bavarian contingent
was so manipulated as to be of no service to
Francis Joseph in the hour of his bitterest need.
Perhaps Austria lost little in reality by this virtual
defection on the part of the leading state on whose
support she had counted, and in order to back up
whose rights and behests she had engaged in the
fatal duel with Prussia. But certain itis that Bavaria
gained by her own comparative inaction. Had her
insidiouspropositions been listened to by Austria her
troops might, perhaps, have shared in the disaster of
Sadowa, and her fortunes been very different to
what they are now. She might have been threatened
with the fate of Saxony, without finding, like the
northern kingdom, a foreign patron to throw the
aegis of his intercession between her and the de-
spoiler. As it was, her small show of resistance to
Prussia cost her very little. She came off wondrous
cheaply in the final moment of annexation and ter-
ritorial slicings. Some small districts north of the
Maine, embracing a territory of 291 English square
miles, with a population of 32,000 souls, mark the
extent of the transfer from Bavaria to Prussia. But
though her mingled ambition and cowardice hap-
pened to serve her well in the critical moment of
Austria's downfall and Prussia's aggrandisement, she
is by no means at her ease as to the future. Were
she to rest contented with her actual condition.
Prince Hohenlohe assures us that " she would be
isolated." This of course would never do ; the
peril would be too great fora kingdomscarcely com-
prising 6,000,000 of inhabitants. Asa member of

a Confederation in which there were so many jeal-
ousies, and where there were but two other members
who could boast a larger population than herself,
such a condition seemed tolerable enough. She could
incline to either of these two principal states, ac-
cording as self-interest directed, in the hope that her
weight would just decide the wavering balance be-
tween them,:and the one which she favoured would
compensate her for her useful partiality out of the
territories of the smaller ones. Unluckily for her,
when the real moment for decisive choice ar-
rived, she made a mistake not only in her cal-
culation as to which was the stronger of the two,
but also as to which was the more unscrupulous.
Austria, to whom she applied, was not ready to
bribe her with promises of winked-at theft from
Baden or Darmstadt ; and it soon turned out
that even if Austria had been capable of counte-
nancing the proposed disloyalty, her countenance
would have been of no avail. Now, therefore,
Bavaria finds out the things that are for her peace.
" Bavaria needs a protector,"'her Foreign Minister
declares to her Chamber of Deputies. "She must
lean on a great Power." What Power is it to be ?
It used to be Austria on whom she usilly leaned,
though in the days when she thought she could turn
the balance between Austria and its rival she would
have resented the idea of her requiring " a protec-
tor." Now, however, she herself proclaims that she
absolutely needs it ; but she is too courteous of
course to say that Austria has become too weak to
afford her the protection which she requires. Ac-
cordingly she invents another excuse, which is at
once more civil, more convenient, and apparently
less ungrateful. She cannot now lean on Austria,
because " in Austria the German element is now far
from dominant." Note the patriotism of her choice
of " protectors." She is Bavarian, it is true ; but,
more than all, she is German. The integrity of
Germany and the union of the branches of the
Fatherland are the object of all her efforts. The
greatest part of Germany must be placed under a
sole central Power with a parliamentary representa-
tion. Prince Hohenlohe, speaking for the Ministry,
and, indeed, for the State, will not hear of a South-
ern Confederation, whether under the protection of
A foreign Power—by which, of course, France is
alluded to—or under the leadership of Austria. Such
a Confederation would only widen the abyss be-
tween the South and the North of Germany. To
bridge over this abyss would now appear to be the
destiny of Bavaria. But for this purpose, as we have
said, she must lean on a great Power. The Minister
at last, after considering every other possible com-
bination, does not hesitate to declare what Power it
must be. " This great Power can be but Prussia."
He then goes on to say that Bavaria's programme
must be a federative alliance with Prussia, and even
professes to regret that the union cannot be closer.
He would have us believe that " Prussia's recogni-
tion of the Maine boundary is lamentable," and
points out how this unfortunate decision of Count
Bismarck is to be countervailed. It can only be done
by thoroughly carrying out the programme stated
above, of a federative alliance with Prussia. This
involves the placing of the Bavarian army, in case
of war, under Prussian orders, and renders indis-
pensable a reorganisation of the army after the
Prussian model. A plain hint is then thrown out
that this could be more efficaciously done, if the other
southern states would only reorganise their armies
after a similar pattern. It is impossible to exagge-
rate the importance of this speech. It is as valuable
an indication of which way the wind is blowing in
Germany as could be had. The official journal at
Vienna has already protested against portions of the
Prince's address, but the protest will carry no weight.
Bavaria in reality wishes to preserve her independ-
ence and autonomy, and she thinks that her best
chance of preserving them is by making up to
Prussia. It can scarcely be said to be Prussia's
habit parcere subjectis, but she certainly crushes the
resisting without pity. The Minister's declarations
of Bavaria's policy are a most striking tribute to the
estimation in which the power of new Prussia is held
in Germany. We do not believe for a moment that
they represent any real consent on the part of the
smaller state to be absorbed by the larger one.
Quite the contrary. They are the gifts and com-
pliments by which a feared opponent, it is timidly
hoped, may possibly be disarmed. " Please, don't
eat me ! " Bavaria seems to say to Prussia, " and I
will do so and so to please you, and get my neigh-
bours to do the same." We do not for one moment
put out of sight the genuine craving for unity which
exists throughout Germany, and exists nowhere more
strongly than in Bavaria. It is partly with the ob-
ject of conciliating, the party which looks to this
object that Prince Hohenlohe's weighty words have
been uttered. If Prussia should ultimately have to
descend from her all but imperial supremacy in some
future German Confederation, Bavaria will be able
to point to her programme as not having really
sinned against that consummation. Should Prussia
contrive to retain its present hegemony, Bavaria
would then have a powerful " protector." We con-
demn the rank selfishness, past and present, of Ba-
varian policy, but we cannot fail to see how much it
proves, nor can we wholly regret its direction. Ab-
sorbing or absorbed by Prussia, Germany is to be
one ; and we cannot but rejoice over that promised
unity. Bavaria for one, " will not enter into any
Southern Confederacy under the protectorate of a
foreign power." Those who run may read what
the declaration signifies.

COUNTRY MARKETS.

SALISBURY.-TUESDAY.

A larger number of sample sacks was pitched at market
this morning than for some time past. A moderate busi-
ness was done in wheat, at last week's prices. Barley wag
plentiful, at late quotations. Beans and peas met with
about the usual inquiry, the turn of prices being against
buyers. Flour has now reached a very high figure, and
to-day the trade was inactive, buyers only meeting present
requirements.

The following are the quotations :—Wheat realised from
558 to 65s ; barley, 37s to 535; oats, 24s to 30s ;
to 588; and peas, 40s to 52s per qr. Tares, from 4s 6d to
55 6d per bushel ; Best bread, 15d ; household ditto, 14d
per 81b loaf. Flour, 45s to 49s per sack. beans, 46i