Page images
PDF

the Statute 37 Henry VIII., c. 12, should have been enrolled in Chancery, and although our less sophisticated ancestors appear never to have contested its validity on the ground of its nonenrolment, the legal talent of the 19th century insisted so frequently on this point that the ground of contention was at last removed by a decision of the House of Lords (Maedougall v. Pourrier, 2 Dow. and C. 1 3 5), which determined that enrolment must be presumed.

Mr. Burnell has prefaced his work with an interesting account of the origin of tithes. We are, however, unable to agree with him in accepting the year 1200 as the time when tithes were first made compulsory. Pope Adrian IV., Dugdale tells us (Monast. 827), ordered the monks of Boxley to pay parochial tithes as fully as such had been paid before they came into that parish, which was in 1144.. Giannone, indeed, carries back their enforcement by Papal decree as far as the sixth century. In England, with which alone we are here concerned, Hallam doubts their general establishment as a source of parochial revenue till near the period of the Conquest. The legal obligation to pay tithes dates from A.D. 787, when the Legatine Councils held in England—-which, being attended and confirmed by the Kings and Ealdormen, had the authority of Witenagemots —made it imperative (see Stubbs, Const. Hist. i., 228). The true importance of the year 1200 seems to be that it marks the extension of the tithe system from the praedial limits within which it had been confined to profit of every kind under the sun. Mr. Burnell's book is, as a whole, well conceived and well carried out, and is likely to prove a useful compendium for those interested in the Commutation and Redemption of Tithes in the City of London.

The Canada Law journal, third Series, Vol. I., 1881. (Toronto: ‘Willing & Williamson.)

The Canadian Law Times, Vol. I., 1881. (Toronto: Carswell & Co.)

We are glad to note signs of life in the legal literature of the Dominion. Our old contemporary, the Canada Law 7ournal, now in its twenty-seventh year, comes out in a fortnightly issue, with improved type and paper, commencing with the new year. \Vhile we congratulate old friends, we are none the less pleased to say a word of welcome to new faces, of whom We hope to see

[ocr errors]

more, in the shape of the Canadian Law Times. There can be no lack of matter, we apprehend, for legal criticism and suggestion, seeing that at Dominion Judicature Act has just been introduced. In proof of this, we note an elaborate paper on the Law of Allegiance, by Mr. Hodgins, Q.C., and other articles which promise well for the literary and juridical interest of the Canadian Law Times.

[graphic]

The Marriage Law of Ireland. With an Introduction and Notes. By W. HARRIS FALCON, Barrister-at-Law, sometime Professor of Constitutional and Criminal Law, King’s Inns. (Dublin: Hodges, Figgis and Co. 1881.)

Mr. Faloon, whose recent contribution to our own pages will be fresh in the memory of our readers, has lately published a very useful and timely book on a subject of great importance, to which we have, on more than one occasion, devoted considerable space in this Review. By way of preface, besides his Introduction proper, Mr. Faloon describes the legal machinery for marriage in the Irish Episcopal Church, among Roman Catholics and Presbyterians, Quakers and Jews, as well as before a Registrar at his ofiice. The brief pages headed “ England and Scotland” are intended simply as a guide where the marriage is “mixed,” in the sense of one of the parties being Irish and the other English or Scotch. The marriages ordinarily known as “ mixed” have often caused complications, which are set forth under the title " Evidence—Bigamy." We do not feel quite sure that Mr. Faloon’s statement of the requirements of the marriage law “ in England and Ireland," on page 2 of the Introduction, is quite clear. The presence of the Registrar is required in England at a marriage by a Nonconformist minister, for this is one of the grievances whereof redress IS sought in the Bill introduced by Mr. Briggs and Mr. Borlase. That there is a substantive grievance we are far from denying, since the Registrar has not the gift of.ubiquity, and marriages are often most inconveniently delayed by his unavoidable absence. But to remedy this, as proposed by Mr. Briggs, by casting the onus of registration on the parties, would be, in nine cases out of ten, to destroy all chance of registration-—a result doubtless not desired by the author of the Bill. Mr. Faloon’s enunciation of what seems to him to be the present legal position in regard to Roman Catholic marriages in Ireland

(Introduction, p. 9) is one of very great gravity. If our author is right in believing that they may at this moment, “ so far as the State is concerned," be celebrated “ privately or publicly, at any time or place, and in any form or manner the celebrating priest may think proper, without banns, licence, notice, residence, or consent,” he has, in our opinion, shown weighty cause for the speedy reform of such a condition of Anomia. We commend Mr. Faloon's book to the careful consideration of all who are interested in having a clear understanding of the marriage laws of Ireland, whether as such, or as a branch of the wider question ' of the marriage laws of the United Kingdom.

A Digest of the Law of Libel and Slander. By W. BLAKE ODGERS, M.A., LL.D., of the Middle Temple, Barrister-at-Law, late Scholar and Law Student of Trinity Hall, Cambridge. Stevens and Sons. 1881.

A Treatise on the Law concerning Libel and Slander. By JOHN C. H. FLOOD, of the Middle Temple, Barrister-at-Law. W. Maxwell and Son. 1880.

These two works, different alike in size and in the purpose each is intended to serve, have this in common that they deal with a subject always of practical interest.

Mr. Odgers has, he tells us, taken several years over the composition of his Digest. It generally does take some time to produce a good book, and more time than usual is needed to produce a good law-book. The result, in the case of Mr. Odgers, amply justifies the time he has devoted to his subject. He has produced a book which gives a generally clear view of the existing state of the law on a frequently intricate and perplexing topic, and which treats a well-worn subject with freshness and originality. These are features of no small value, and in an age of much book production, when it is becoming increasingly diflicult to make a mark in legal literature, the Digest now before us ought to make its mark. The Book is written in Digest fashion, and is fairly entitled to the name which has been given it. The propositions purporting to state the law are, of course, drawn from decided cases, and a selection ofjudicial decisions is given in support of each group of propositions. In some of the older cases these decisions are very quaint, and we should incline to think of doubtful authority now-a-days. This is a difficulty which Mr. Odgers has himself felt, but from which he apparently sawno escape. We confesstoa greater doubt than our author himself seems to have felt in regard to leprosy. \/Vould Taylor v. Perkins be followed now, if a man were so much of a Monkbarns as to say to another “ thou art a leprous knave ? " The mediaaval horror of that not very clearly ascertained form of disease, which appears to have spread over Western Europe in the wake of the returning Crusaders, was doubtless still fresh in men’s minds t. Jac. I. What relation it really bore to the scriptural disease whose name it assumed, is, so far as we have been able to ascertain, still a matter of dispute. On the whole, therefore, we should certainly not expect to find the cause of action in Taylor v. Perkins sustained in the nineteenth century. The Precedents with which Mr. Odgers has furnished his readers are in several cases drawn from causes célébres of former days, such as R. v. Newman (the Achilli case), R. v. Horne, &c. The Interrogatories printed show what has been struck out, as well as what has been allowed, a point of no slight importance.

Mr. Flood writes principally with a view to the lay public, who certainly need all the information they can get on such a subject, and who, perhaps, would not be so ready to rush into Court if they took a little thought before rather than after the event. We do not think the extracts from the Pentateuch throw much light on the English Law of Libel, and we must demur to the depreciatory view which Mr. Flood takes of Norman juridical science. As a matter of fact, there can be no doubt that the first Norman occupant of the See of Canterbury was far more of a jurist than any of his immediate predecessors; more so, perhaps, than any since Theodore of Tarsus. And the subtlest of the many subtle technicalities of Feudal Law characterise the whole of the attitude of VVilliam the Conqueror no less towards Harold and England than towards the Roman Curia, itself the centre of Canon Law. Mr. Flood deserves the thanks of his readers for a feature in the list of reports referred to in his book, to which he has added the periods comprised. This will be found often to throw the light of contemporary history upon a particular decision, and may even afford ground for a side argument to the practitioner, as adding to, or detracting from, the value of the judgment as a precedent. In a future edition Mr. Flood should correct “ Lappenburg ” into Lappenberg, both in his citation, p. 14, and in his list of authorities. We observe that in the list he professes to follow Bracton, ed. 1569, but in his text he cites the edition of 1640. It would be more convenient to cite uniformly the edition of Sir Travers Twiss, of which Vol. IV. is now in the Press.

The Scientific Study of the Hindu Law. By J. H. NELSON, Esq., M.A., late Fellow of King‘s College, Cambridge, of the Middle Temple, Barrister-at-Law, and a District Judge, Madras. London : C. Kegan Paul_& Co. Madras: Higginbotham & Co. 1881.

Mr. Nelson has for some years been known as an earnest advocate of the necessity for a thorough reform, not to say revolution, in the existing theory and practice of our Courts in matters of Hindoo Law, especially as affecting Southern India. In the pages of our able Madras contemporary, the Indian jurist, where the work now before us originally appeared, as well as in the 7oumal of the Royal Asiatic Society, Mr. Nelson has not ceased to utter his protest against a system which applies as law that which he is convinced is not law, and perhaps never was, for the varied masses of people, of differing origin, inhabiting what is now the Madras Presidency. Not only does he, in the present volume, attack the supposed paramount authority of the Mitakshara, but he strikes at the root of the so-called Code of Mann itself. We must avow our belief that there is a great deal to be said alike against Mitakshara and Mann. Manu is, indeed, constantly cropping up. It is confidently cited in Court, as is shown by a recent number of the Indian jurist (v.. p. 306), in a Calcutta High Court case, Jogendronundini Dossee 12. Hurry Doss Ghose, before Garth, C.]., and Pontifex, ]., where Bonnerjee, for the wife, cited Mann, ch. v., to show “the position of the Hindu wife,” and similarly, ch. ix., “ the husband’s duties." We may take occasion to remark, in illustration of the difficulties attending on Hindoo Law, that, in the same case, the opinion of our valued contributor, Mr. Justice Markby, now Reader in Indian Law, Oxford, was cited against the existence of restitution of conjugal rights in Hindoo Law, as well as an opinion, contni, of the Bombay High Court. It is proverbially hard to decide, where doctors disagree. The historical and ethnical arguments against the prevalence of the supposed“ paramount authority ” in Southern India, as marshalled by Mr. Nelson, appear to us

« PreviousContinue »