COMMERCIAL TREATIES-COMMISSIONS OF ENQUIRY The French treaty of 1860 has been described at some length, because in connection with it the whole question of the principles of commercial treaties has been raised and discussed. The principal arguments for and against may be enumerated under five headings. (1) The opponents of commercial treaties appeal to their failure in the past to secure the advantages for which they were ostensibly negotiated. So long as the Navigation Acts remained in force, they naturally gave rise to retaliation by other nations, and the retaliation was met by reciprocity treaties with various countries on various conditions. The complications which ensued were so great that they had much to do with the ultimate repeal of the acts. This is only one example of the alleged failure of treaties in the past, but it is maintained that on the whole they have produced more harm than good. To this it is replied by the advocates of the system that the old ideas on which such treaties were based were economically unsound, being survivals of the mercantile system; but that the French treaty and others drawn on similar lines have proved beneficial in recent times, and that the appeal to the past can only be fairly made when all the circumstances of the case are considered. (2) It is objected to commercial treaties that, in appearance at least, if not in reality, they are opposed to the principles of free trade. Even although no differential duties are imposed, and all nations are ostensibly treated with equal favour, still it is said that if a free trade nation arranges its tariff out of consideration to the revenue of another country, so far that nation is "favoured" relatively to others, and that this amounts to an infringement of freetrade principles. To this it is replied that commercial treaties afford a middle way between protection and free trade, and that if other nations, by means of a treaty, are brought to see the advantages of a reduction of tariffs, they may ultimately follow the example of England (see FAVOURED NATION CLAUSE) and repeal many of these duties altogether, and eventually adopt free trade. Such was the opinion of Cobden, and it is supported by Mr. John Morley, Cliffe Leslie, and many other free-traders. (3) It is alleged that it may prove inconvenient to a government to have its hands tied for a definite term of years on fiscal matters, as England was bound, for example, not to increase the wine duties nor to impose an export duty on coal. To this it is replied that the fixity of a tariff is advantageous for the stability of trade. (4) This reply leads to the further objection that, as the time of the treaty approaches fulfilment, there will be a great disturbance in trade whilst the new negotiations are in progress, and again an appeal is made to the experience with France after the first ten years 355 had been completed. The obvious answer is that the disturbance is only temporary, and in any case that a treaty subject to the possible failure of renewal is better than none at all, so far as the convenience of traders is concerned. (5) The objection made by the extreme advocates of free trade, which, if valid, would be the strongest possible, is that there is really no use in such treaties; that a nation should rely simply upon free imports to fight foreign tariffs, and that the exports can be left to take care of themselves. Suppose, it is said, that England of her own accord, and without any equivalent treaty, reduces the duties on French wines and silks, and thus encourages importation; still these imports must in the end, directly or indirectly, be paid for by exports; if France excludes our goods directly, then she must accept payment from other nations which do accept our goods. The best answer to this argument is perhaps that given by Mr. John Morley (Life of Cobden, vol. ii. p. 343). "The decisive consideration is that we can only procure imports from other countries on the cheapest possible terms on condition that the producers in those countries are able to receive our exports on the cheapest possible terms." This opinion may also be supported by the authority of Adam Smith, who always maintained that the near trade was more advantageous than the remote, and the direct than the roundabout trade. [The following books may be consulted: Schanz, Englische Handels-Politik, Leipzig, 1881.-Adam Smith, M'Culloch's edition (1872), Note on Commercial Treaties.-Cliffe Leslie, Essays on Financial Reform, Cobden Club, 1872.-List, National System of Political Economy.-Morley's Life of Cobden.-Sir Thomas Farrer, Free Trade versus Fair Trade.-Four Letters on Commercial Treaties (Cobden Club), 1870.-Mallet's Free Exchange, 1891.] J. S. N. 356 COMMISSIONS OF ENQUIRY COMMISSIONS, JUDICIAL "reference," and the commission is invested with power to summon witnesses and to call for such records, books, and papers as in its judgment may serve to throw light on the subject of the enquiry. The first person named in the reference is usually considered to be nominated as the chairman of the committee, and a secretary, not himself a member of the commission, is also appointed. The commission itself decides the course which its proceedings shall take. It frequently arranges, in the first instance, for the issue of such circular letters as may appear calculated to elicit general information, and it then proceeds to hear oral evidence. The first witnesses called are ordinarily those government officers who, from the position they occupy, may be presumed to have a special knowledge of the subject in hand. The examination in chief is conducted by the chairman, each member of the commission in turn having an opportunity of questioning the witness. In some cases, additional or assistant commissioners are appointed to prosecute subordinate enquiries in distant places and even in foreign countries. These usually receive payment for their services, as does also the secretary, unless he be in the permanent employment of the government, in which case it is customary to award him a bonus when the work of the commission is at an end. The commissioners themselves are ordinarily unpaid. When the commission has obtained all the evidence it considers necessary, it prepares and presents its report, which, with an exact transcript of the evidence and the documents forthcoming in the course of the enquiry, are then laid before both houses of parliament and sold to the public. Commissions of enquiry obtain and arrange in a convenient form a vast amount of information of great value, and in this their main utility exists. Parliamentary and political reasons frequently prevent the carrying out of the recommendations of commissions, it being impossible to dissociate from the government of the day the final responsibility for any action taken on the basis of their reports. The following are the principal commissions of enquiry which have been appointed since 1830, to consider subjects of economic interest :1832. Poor Laws. 1833. Employment of Children in Factories. 1836. Irish Railways. 1840. Employment of Children in Mines. 1843. Scotch Poor Laws. 1843. Irish Land Laws. 1853. Shipping Dues. 1855. Decimal Coinage. 1863. Fisheries. 1866. Duration of Coal Supply. 1867. Trades Unions. 1868. International Coinage. 1875. Labour Laws. 1876. Factory and Workshops Acts. 1881. Agricultural Interests. COMMISSIONS, JUDICIAL. The general tendency of English legislation has been to reserve all judicial business for the courts of justice. But in modern times certain important functions of a judicial character have been entrusted to commissions differing in many respects from the ordinary courts. The motives for establishing such commissions instead of increasing the regular judicial staff have been various. A particular class of cases may demand such a technical knowledge of subjects not legal as cannot reasonably be expected from a professional judge. Thus the class of cases which comes before the Railway Commission requires an exceptional acquaintance with the principles of railway organisation and management. Or again, the judicial function to be performed may be one which the law has never contemplated, and for which the principles of jurisprudence afford no guidance. Thus the principal function of the Irish Land Commission and the Scotch Crofters' Commission is to set aside existing contracts of land-tenure and to determine what is called a "fair rent." these cases the function of the commissions is rather political than legal; it is to reduce that resistance to the fulfilment of legal obligations which is never recognised by a jurist, although it may sometimes be troublesome to a states man. In Commissions such as these differ from normal courts of justice principally in three respects(a) jurisdiction; (b) composition; (c) procedure. (a) Jurisdiction.-Whilst an ordinary court of justice has usually jurisdiction to deal with many kinds of cases, a judicial commission is commonly confined to dealing with cases of a particular class. Thus the main function of the Railway Commission is to ensure impartial treatment of all persons or corporations using a railway, and to arbitrate in disputes between railway companies or canal companies. The main function of the Irish Land Commission and of the analogous commission in Scotland is to deal with disputes between landlord and tenant. (b) Composition.-In the United Kingdom, at all events, it is the uniform practice to select the judges exclusively from the legal profession. But judicial commissions usually include other persons as well as professional lawyers. Thus the Railway Commission, as originally constituted (Regulation of Railways Act, 1873, 36 & 37 Vict. c. 48), consisted of three commissioners, of whom one was to be of experience in law, another of experience in railway business. As recently remodelled (Railway and Canal Traffic Act, 1888, 51 & 52 Vict. c. 25), the COMMISSIONS, JUDICIAL-COMMODITY Railway Commission consists of two appointed commissioners, including one of railway experience and three ex-officio commissioners, namely, a judge of a superior court in England, in Scotland, and in Ireland respectively. The Irish Land Commission (Land Law Ireland Act, 1881, 44 & 45 Vict. c. 49) consists of three commissioners, one of whom must be a barrister of ten years' standing, and holds office for life, whilst the other two need not be lawyers, and are appointed for a term of seven years. This commission, however, delegates most of its work to sub-commissions. Barristers, solicitors, and persons possessing a practical acquaintance with the value of land in Ireland are competent to be appointed to the office of assistant-commissioner. The Crofters' Commission consists of three persons, of whom one must be an advocate of ten years' standing. (c) Procedure.-The procedure of such a judicial commission as above described is wholly determined either by the statutes under which it acts or by rules drawn up by itself. There is no implied adoption of any system of procedure followed in any of the regular courts. At least such adoption is limited to one or two equitable principles, such as that of hearing both parties to a dispute, which we hardly regard as technical. Appeals to a superior court on questions of fact are not allowed, since this would defeat the purpose of instituting such commissions; but appeals on questions of law are in some cases permitted. Such commissions as above described are for some purposes a necessity of the body politic. But their unnecessary multiplication would be a great evil. A tribunal established to deal with a special class of cases is often the readiest instrument of injustice or oppression. Everybody is interested in the impartiality of a court before which he may appear as defendant. But many unfortunately will applaud partiality in a court where defendants belong exclusively to an unpopular class like landlords or railway companies. As compared with judges who are also jurists, judges who have had no legal discipline are less likely to deal with causes in a severely judicial spirit, to consider sufficiently the consequences of making a precedent, or to uphold that stringency of procedure which, tedious as it may seem, is the best safeguard against passion or careless ness. Hitherto the predominance of the regular courts of justice has protected us from most of the evils which might have been feared from commissions armed with judicial power. But the multiplication of extraordinary tribunals and of special procedures would break down this predominance, and with it the old English principle of submitting to a regular court for adjudication in the regular way every question which can be formulated in terms of law-a principle always precious and always difficult to maintain, but in an age of popular govern 357 ment especially invaluable and yet especially liable to be overthrown. [For further particulars respecting the Railway Commission see the Acts 36 & 37 Vict. c. 48, and 51 & 52 Vict. c. 25, and the Acts therein referred to; also the report of the joint-committee of Lords and Commons on railway amalgamation, 1872; and the text-books on the law relating to railways. Respecting the Irish Land Commission, see the Act 44 & 45 Vict. c. 49 and the amending Acts. See also the rules issued by the Irish Land Commission, especially those of October 1881. Respecting the Crofters' Commission see the Act 49 & 50 Vict. c. 29 and the amending Act.] F. C. M. COMMISSIONER. See FACTOR. COMMISSIONERS OF SEQUESTRATED ESTATE. See BANKRUPTCY, SCOTLAND. COMMITTEE (with reference to cases of lunacy). A person charged to represent the interests of a lunatic, either as committee of his person or as committee of his estate. Committees are appointed for those lunatics only whose mental incapacity has been established by the inquisition of one of the masters in lunacy, either with or without the assistance of a jury. The same person is frequently appointed in both capacities, i.e. as committee of the person and of the estate of a lunatic. The administration of the property of a lunatic so found by inquisition is to a great extent under the control of the lunacy authorities. E. S. COMMITTEE OF INSPECTION (bankruptcy). A committee consisting of not less than three and not more than five persons, selected from the creditors of an insolvent debtor at the first or any subsequent meeting of creditors, for the purpose of superintending the administration of the bankrupt's property by the trustee. The trustee cannot exercise certain powers without the permission of the committee of inspection, and the committee can take the initiative in certain other proceedings. The appointment of a committee of inspection is not compulsory, and the act provides that in the absence of such a committee the Board of Trade is to exercise its functions. [See Bankruptcy Act, 1883, 46 & 47 Vict. c. 52, specially §§ 22, 57, 58 (2), 64, 74 (4), 89 (1), also Bankruptcy Act, 1890, 53 & 54 Vict. c. 71, § 5.] E. S. COMMODATUM. A term of Roman law used to express the loan of a thing which had to be returned in specie. COMMODITY. The idea of something commodious in the way of usefulness is never absent from the use of this word in an economic sense, but to this meaning a very wide interpretation is given by some economic writers, while others are disposed to restrict its application much 358 COMMON ASSURANCE-COMMONS In the earlier cases various reasons were given in support of the doctrine, but in the later cases the tendency is to base the rule upon an implied contract entered into by the servant with his master that the latter should not be under any necessity to indemnify him from the negligence of a fellow-servant. In order to establish common employment it is not necessary that the servants should be employed about the same kind of work; it is sufficient that they are engaged under the same employer for the purposes of the same business, however different in detail those purposes may be. The relative rank of the servants is immaterial, and a stranger who voluntarily gives help is for the time regarded as a servant. The legal effects of the doctrine have been to some extent modified by the 43 & 44 Vict. c. 42. Under that act a workman is entitled to com more closely. A. Smith (Wealth of Nations, bk. iii. ch. iii.) defines the difference between productive and unproductive labour as that which does or "does not fix and realise itself in any permanent subject or vendible commodity which endures after that labour is past, and for which an equal amount of labour could afterwards be procured." Ricardo (ch. i. § 1) uses the word in a somewhat different manner. "If a commodity were in no way useful, in other words, if it could in no way contribute to our gratification, it would be destitute of exchangeable value," and includes among "the mass of commodities," 'rare statues and pictures, scarce books and coins, wines of a peculiar quality." With J. S. Mill (Principles of Political Economy, bk. iii. ch. ii. § 3), while other considerations come in, the word is employed mainly in the same sense as by Ricardo. Mill speaks of the product of labour as "utili-pensation for injuries resulting from the neglities," among which he would class not only the labour of the physician and the teacher, but that of the musical performer and the actor. This idea is further developed by H. Sidgwick (Principles of Political Economy, bk. i. ch. iv.) who proposes to extend the terms "produce" and "commodities' so as to include " consumable services," such as the utilities developed by "literary, artistic, and scientific culture." In this view E. Cannan (Elementary Political Economy, pt. ii. § 2) includes "services which do not involve the production of a useful material object" among "commodities." difficulty of exact definition of "productive" and "unproductive" labour has led to this extension of the use of the term "commodity." The examples from the authors cited above sufficiently explain this gradual development. The original use was wide, e.g. "Tickling commodity, the bias of the world" (King John), and elsewhere in Shakespeare frequently (Twelfth Night, Henry IV., etc.) The COMMON ASSURANCE. The legal evidences of the transfer of real property. These have been called "common" assurances as opposed to special methods of transfer such as fines or recoveries. [Stephen's Commentaries, bk. ii. pt. i. c. xv.] J. E. C. M. COMMON EMPLOYMENT, DOCTRINE OF. "A servant, when he engages to serve a master, undertakes, as between himself and his master, to run all the ordinary risks of the service, including the risk of negligence upon the part of a fellow-servant when he is acting in the discharge of his duty as servant of him who is the common master of both." This extract from the judgment of Earle, C.-J., in Tunney v. Midland Railway Co. (L.R. 1 C.P. at p. 290) may be taken as a judicial statement of the doctrine of common employment first suggested in 1837 in Priestley v. Fowler (3 M. & W. 1), and afterwards adopted by the House of Lords. gence of a fellow-servant acting as a super- [Addison on Torts, by H. Smith, London, 1887. -Treatise on the Principles of Obligations arising from Civil Wrongs in the Common Law, by F. Pollock, London, 1887. As to liability of employers in foreign countries, see Parl. Pap. Commercial, 1886, No. 21.-Harvard Law Review, December 1888. On the subject generally, see Essays in Jurisprudence, by F. Pollock, London, 1882.-Parliamentary Papers, H. C., 1876, No. 372; 1877, No. 285.-Report of Select Committee, 1886, No. 192.] J. E. C. M. COMMON GOOD (Scotland). Property belonging to a municipal corporation, administered by the magistrates. A. D. COMMONS. Upon the origin of rights of common there are two main theories. The legal theory, in its crudest form, traces the primitive form of property to individual ownership, and regards rights of common as being based upon the grant or the sufferance of an individual owner. The historical theory traces the natural or original form of property to common ownership, and sees in rights of common the survivals of an era before the evolution of individual ownership. So far as the soil of England is concerned, the balance of probability appears to be in favour of the view that the legal theory, with certain modifications, approximates most closely to the truth. The question may have more than antiquarian importance, because it has a direct bearing upon that theory of the nationalisation of the land which assumes as its basis the | (Complete Copyholder, p. 8, etc.), rights of original common ownership of the soil. If the historical theory is correct, rights of common represent all that the encroachments of individual owners failed to absorb; if the legal theory is correct, rights of common represent the encroachments of servile tenants upon the possessions of individual owners. The essence common existed subsequently to manors, and originated in the grant or the sufferance of the lord. And this is the legal basis upon which common rights rest. As a question of fact it may still be disputed whether rights of common over the wastes of a manor are exercised by the association of farmers in virtue of their former ownership of the soil, or by the grant or sufferance of the individual owner, whose tenants they are. But there can be no dispute that since the Norman Conquest such rights are legally of the nature of exceptional rights granted over land by its real owner to his tenants. They are of four kinds: (1) Appendant, i.e. attached or incident to the tenancies of freeholders; (2) appurtenant, i.e. enjoyed by strangers in respect of land not belonging to the manorial estate; (3) in gross, irrespective of land at all; (4) customary, i.e. enjoyed by copyholders. Such rights differ not only in origin but in kind. Thus there may be commons of pasture, of piscary (fishing), of turbary (turf-cutting), of estovers (cutting or taking wood). The later history of commons is a history on the one side of attempts to extinguish the rights enjoyed, and on the other of efforts to resist such encroachments. At first no public rights were recognised; resistance was made if of the Mark system or Teutonic village com- Opposition to the enclosure of commons entered ures. could only be enclosed by means of private acts of parliament. But under the pressure of increasing population it was necessary to utilise every available acre. In 1801, through the exertions of Young and Sir J. Sinclair, an Inclosure Act was passed (41 Geo. III. c. 109) which incorporated the provisions generally in |