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Select Pleas in the Court of Admiralty. Vol. II., A.D. 1547—1602. Edited for the Selden Society by ReginaLD G. MARSDEN. London : Bernard Quaritch. 1897.
We reviewed the first volume of this interesting compilation in our February Number, 1896, and we are pleased to see the compilation continued in the volume before us. It begins with the history of the Court of Admiralty, and follows with an account of the Admiralty jurisdiction of the seaports—wrecks, droits and salvage; also of prohibitions, early references to the Admiralty Court, summary of cases litigated in the Admiralty 1528—1602, a series of exemplifications and examinations, and some remarks on the records subsequent to the reign of Elizabeth.
Notwithstanding the determined attack upon the Admiralty Court by the Common Law judges, the business' transacted by it during the seventeenth century was very considerable. Its character is very similar to that of the sixteenth century. Forty-five prohibitions were issued during the first eight years of the reign of James I. In the view of the Common Law judges, the Admiralty had no jurisdiction in most of the matters with which it had hitherto dealt. Collision in a county, wreck (or salvage), charter-parties, bills of lading, bottomry, wages, piracy and even prize were all held to be matters for prohibition. Nevertheless the Court, whether by right or by sufferance, went on very much as before until the Restoration. During the Commonwealth, its business seems even to have increased, owing, probably, to an Ordinance of Parliament which declared or gave the jurisdiction which it claimed. With the Restoration, the attack of the Common lawyers upon the Court began afresh, encouraged by the disfavour which then attached to all the doings of the Commonwealth, including the recent settlement of the Admiralty jurisdiction. The efforts of Sir Leoline Jenkins to induce Parliament to confirm that settlement, and their final failure, are historical; ample references to them occur in the Admiralty Court records. The decadence of the Court dates from this period. Admiralty lawyers then gave up a hopeless struggle with the Common Law judges, and the business of the
Court rapidly declined. During the eighteenth and early part of the nineteenth century, the business consisted principally of piracy, salvage, collision, wages and bottomry suits, but the amount of the business was trifling, compared with that of former years; and the jurisdiction, even in these matters, was questioned by occasional prohibitions.
Notwithstanding one or two prohibitions in matters of prize, the jurisdiction upon this subject was never seriously contested, and it was finally recognized towards the end of the eighteenth century. The separation of prize from instance business appears to have been made shortly after the Restoration, partly in consequence of conflicting claims of Charles II. and the Duke of York, the Admiral, to certain droits. From this time the instance and prize records are kept distinct.
Extracts from the records of the High Court of Admiralty, together with their translations, take up the greater part of the volume. We must congratulate the editor on the able manner in which he has designed and carried out this laborious task, which cannot fail to cast a new vista on the proceedings of our ancient Admiralty.
Robinson on Gavelkind : the Common Law of Kent, with additions relating to Borough-English and similar Customs. By Charles I. ELTON, of Lincoln's Inn, Q.C., and HERBERT J. H. MACKAY, LL.B., of the Middle Temple, Barrister-at-Law. Fifth Edition. London : Butterworth & Co. 1897.
In some 250 pages a great deal of information is contained concerning the Common Law of Kent. All lands whatsoever lying in the county of Kent are presumed to be of the nature of gavelkind till the contrary be made to appear. Lord Hale says that such presumption is not allowed in any other county, but the person claiming the benefit will be bound to prove the custom. The descent of lands in Kentish gavelkind has long been settled as being among all the sons or their representatives, and in default among all the daughters or their representatives, and so in the case of the males and females in other degrees. The history of this peculiar tenure is a sealed book to many lawyers; hence it is with pleasure that we welcome the new edition of this work, which is well brought down to date, and will be found very reliable by those practitioners who have to deal with the matters in question.
Oke's Game Laws: containing the whole Law as to Wild Birds throughout the United Kingdom, systematically arranged with the Acts, Decisions, Notes, and Forms. By J. W. Willis BUND, M.A., LL.B., of Lincoln's Inn, Barrister-at-Law. Fourth Edition. London : Butterworth & Co. 1897.
It is now sixteen years since the last edition of this book was published, and one of the most important features has been the legislation for the protection of wild birds. By the Wild Birds Act, 1896 (59 and 60 Vict., c. 56), a County Council may, with the approval of the Secretary of State, prohibit the killing of, or taking, any kind of wild bird at any time. This legislation is most beneficent to the interests of our country, and contrasts very favourably with the barbarous practices of Italy, where a traveller may pass over the open country or through woods and orchards, for many miles, without hearing the chirrup of any bird. The editor has fully maintained the repute of Mr. Oke, and has brought the book down to date with the latest Acts and cases.
Encyclopædia of the Laws of England, being a new Abridgement of the most Eminent Legal Authorities. Under the general editorship of A. Wood RenTON, M.A., LL.B., of Gray's Inn, and of the Oxford Circuit, Barrister-at-Law. Vol. II. London: Sweet and Maxwell, Limited. Edinburgh: William Green and Sons. 1897.
This, the second volume of a very useful compendium, continues to maintain its own. We notice an interesting article
“ Trial at Bar" from the pen of Mr. F. H. Short, followed by a uselessly long dissertation on “ Barbed Wire" by Mr. James Weir ; an article perhaps appropriate to the name of the writer, but which might have been condensed in a few lines. Mr. Manson subscribes an article on how to " Become a Bankrupt." We should think that the answer might fitly be found in the picture “ Vice Gambling with Death.” The phraseology of the title is unfortunate, although the article itself is well compiled. Mr. Barclay has contributed an interesting article on “Blockade" and on kindred subjects, although we notice at p. 183 a misprint, which turns Halleck's International Law into Harleck. Mr. Craies again suffers under the obligation of dealing in unsavoury subjects ; while “ Candidate," “Canvassing,” and “Capital Punishment ” from the pen of Mr. G. H. B. Kenrick are particularly happy, and probably the best articles in the volumne.
An Outline of the Law of Libel. Six Lectures delivered in the Middle Temple Hall during Michaelmas Term, 1896. By W. BLAKE Odgers, of the Middle Temple, M.A., LL.D., Q.C. London: Macmillan & Co., Limited. 1897.
These Lectures, having been written and delivered verbally, would best have been buried in oblivion, and we think it unfortunate that they have been printed and published as an “ Outline of the law of libel.” They certainly are not to be relied on as containing an accurate, or anything approaching an accurate, outline of the law of libel, and they are besides, in many respects, niisleading. They are chiefly gossiping discussions, speculative and argumentative, interlarded here and there with some trumpery case, in which the lecturer himself was concerned as counsel on one side or the other; for an instance of which see pp. 102-4. At p. 23 the author states: “ It is very doubtful whether a Corporation can sue for words which merely affect its dignity or honour." This is misleading, it being entirely free from doubt that a Corporation cannot sue in such a case; it was expressly decided in the very case quoted by Mr. Odgers (that of the Mayor and Corporation of Manchester v. Williams) that there is no principle of law on which such an action could be founded.
It seems an unusual and vulgar mode of authorship of a law book, to state an imaginary case, pp. 33-4, and then to offer to argue it when it arises “ in the Court of Appeal on either side.” Again, his illustrations are as unsound as his law; at p. 85, he states another imaginary case; suppose,” he says, paper published a libel on an eminent Q.C.' (without naming him): Can all eminent Q.C. sue, or only one?” Mr. Odgers says he should advise any friend of his so libelled to be the first Q.C. to sue. We have no hesitation in saying that no eminent Q.C.” would act upon such advice. If he did, woe betide him ! In the first place his opponent would at once traverse and deny that the plaintiff was an “eminent Q.C."; an unpleasant issue would thus be raised at the very outset, which plaintiff would find no little difficulty in meeting ; and if he failed in so doing his action would fail, however gross the libel might be. Both the illustration and the advice given by Mr. Odgers are, to say the least, unfortunate.
But these are not the worst features of the book, at pp. 111-112, referring to “ Malice,” the author says that our older Judges and text-writers state the law thus : “ Malice is the gist
of the action of libel. Again, he says, “these venerable writers start by stating something which is not the fact;" and “these worthies will have it that malice is the gist of the action.” Now these are misrepresentations, as well as reflections upon some of our ablest Judges and text-writers. judgment, nor in any text-book recognised as an authority upon the law of libel, is it stated in the way Mr. Odgers puts it. Mr. Odgers refuses to recognise the authorities as to the distinction between malice-in-fact and implied malice, or malicein-law; though expressly laid down in the well-known leading case on the subject-Bromage v. Prosser, 4 B. & C. 247, and which distinction runs through the whole current of subsequent authorities. At p. 115 Mr. Odgers says he was taught "that there must be et damnum et injuria in every action of tort.” One might be curious to inquire in what school he was so taught. We ourselves know of no law text-book containing such a maxim. We are all familiar with the maxims damnum sine injuriâ, damnum absque injuriâ, and injuria sine damno, all of which are clearly and elaborately discussed and explained in most of our elementary treatises on the law of torts; but this is the first occasion on which we have ever seen those maxims perverted into the quaint proposition " et damnum et injuria.” If space and time permitted there are many other unreliable statements we might point out. Suffice it to say that in our opinion this book is not a trustworthy guide either for the student, the layman, or the lawyer.
Four Lectures on the Law of Employers' Liability at Home and Abroad. By AUGUSTINE BIRRELL, Q.C., M.P., Quain Professor of Law at University College. London: Macmillan & Co., Limited. 1897
Mr. Birrell, in the first of the four lectures comprised in the little volume before us, discusses with remarkable perspicuity and ability the doctrine of common employment as applicable to the liability of employers, shewing its origin in the Law Courts, its application, its effect and the objections to it. He then, in the next lecture, refers briefly to the liability of employers under the Common law, for negligence and breach of duty, and the circumstances which led to the passing of the “Employers' Liability Act, 1880"; the subsequent working of that Act, and its shortcomings. In the third lecture follows a learned and interesting discussion on “Foreign Law and