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Law of Scotland, which presents many intricate features, interesting to the Constitutional historian. We do not feel sure that we quite understand to what cases our author is referring when he says that if a person to whom the King of Scotland issued a writ of summons “ never took his seat, neither he nor his heirs were entitled to the honours of the peerage." Per contra, we do know that three Lords Spynie sat, and that there is no evidence of anything more in their case than the King's expression of an intention to erect their lands of Spynie into “ a temporal lordship, to be called the Barony of Spynie in all time coming." The Scottish Life Peerages, created from time to time at dates extending from 14.27 to 1635, afford a useful argument by analogy, which Mr. Robertson applies to the suggestion of similar creations to keep up the judicial character of the House of Lords as an appellate tribunal. The analogy has been accepted and applied since Mr. Robertson's Lectures were delivered, and we see no reason to doubt that it will work satisfactorily. VVe quite think, with Mr. Robertson, that it was the only course open if the House was to maintain its appellate jurisdiction. The case of the Dukedom of Montrose, created in the person of the fifth Earl of Crawford, however, was one which called for some legal comment, when introduced as an instance ofa Life Peerage. VVe should like to sec Mr. Robertson enhance the interest of his work by discussing many of these questions in an enlarged edition of his useful manual of
Treatise on the Law of Arbitration in Scotland. By j0HN
The appearance of a second edition of the late Mr. Montgomerie Bell’s book on Arbitration is the best testimony to its worth. This edition, we are informed, has had the benefit of a few formal corrections by the author, but the work of revision has been mainly performed, and we may say performed well, by Mr. john Kirkpatrick, of the Scotch bar. Mr. Kirkpatrick’s contributions are mostly confined to the notes, in which the last decisions bearing on the points discussed in the text, are carefully and accurately noted up.
The principle of substituting a private tribunal for a Court of Law in the settlement of disputes has, on the whole, had a more successful history in Scotland than in England, and Mr. Bell writes about Arbitration in more enthusiastic terms than an English lawyer would be likely to use. The Introduction gives a very interesting sketch of its history, beginning with “that famous award which was delivered on Mount Ida, by the royal shepherd Paris, on the competing claims of juno, Pallas, and Venus, contending for the prize of beauty." Mr. Bell notices the place occupied by Arbitration in Roman Law, and in the legal systems of England, Scotland, and Continental countries. If Arbitration has assumed less importance in England than in some other countries, the fact may be accounted for, not only by the natural dislike of competing jurisdictions on the part of the Courts, but by the high degree of confidence which litigants have always placed in the decisions of the established tribunals. Lord Campbell was bold enough to say that the objection to private tribunals on the ground of public policy had its origin in the interests of the judges, for, “ as formerly the emoluments of the judges depended mainly, or almost entirely on fees, and as they had no fixed salary, there was great competition to get as much as possible of litigation into V\/estminster Hall for the division of the spoil." Accordingly the Courts have been not unwilling to strike at the essential feature of Arbitration—the finality of the award—by reviewing more or less directly the merits of the Arbitrator’s decision, as offering a loop-hole for one of the parties to repudiate the submission. The difference between the Scotch and English practice on these points is carefully traced. The book is, in fact, throughout copiously illustrated by references to English law, but we cannot detect anything like that subserviency to English opinion which, according to an English jurist (Sir George Bowyer), is mining the ancient jurisprudence of Scotland. Scotch lawyers have not yet got into the habit of writing pure case-law, and basing every sentence on the ijfisissima dicta of a judge. The book before us is as good an example as could be desired of the better sort of legal authorship, which is, perhaps, more common at the Scotch bar than at our own. We certainly produce every year a very large number of text-books, but they are in most cases a mere compilation of marginal notes, and the nominal author can hardly be held responsible for even the language employed. Although there are about 3,000 cases cited in Mr. Bell's volume, the book contains an independent exposition of the subject as it shaped itself in the author’s mind.
The treatise is divided into six books, under which the whole subject of Arbitration is systematically mapped out. A copious
appendix, containing forms for submission in various cases, will be found practically useful.
The Aryan Household; I is Structure and its Development. An Introduction to Comparative jurisprudence. By W. E. HEARN, LL.D., Dean of the Faculty of Law, University of Melbourne. London: Longmans. Melbourne: G. Robertson. 1879.
VVe welcome with great pleasure in the Dean of the Law Faculty of one of our youngest Colonial Universities a fellowworker with the distinguished European Scholars who have led the van in the interesting science of Comparative jurisprudence. It is as yet a somewhat young science, and would be in a much more crude state than it is but for the power of the masterminds which have been brought to bear upon it abroad and at home. Dr. Hearn is fortunate in enjoying the light which has been cast upon various branches of his subject by Sir Henry Maine, M. Fustel de Coulanges, M. de Laveleye, and other eminent pioneers in this field of study. It might have been expected, perhaps, that Dr. Hearn's position would have led to his discussing Aryan questions somewhat under the influence of non-Aryan surroundings. This, however, is not the case. Our author confines himself strictly to the study of Aryan Institutions, and treats them from an entirely Aryan point of view. Very often, of" course, the results at which Dr. Hearn arrives might be stated in the “ipsissima verba” of his European predecessors. This fact is not without significance as showing that, under very different surroundings, the transplanted Aryan sees no reason for doubting the scientific truth of the general conclusions which have been arrived at by scholars in Aryan lands. Had Dr. Hearn‘s book been composed in Europe, and for European students, it would no doubt have been cast in a somewhat different, and probably less bulky, shape. With a considerable amount of the matter of our author's book we, in this Hemisphere, are necessarily more familiar than our Australian fellow-subjects. But in order to extend to the Colonial Bar-students the benefits of European Scientific jurisprudence, Dr. Hearn was clearly right in assuming the novelty of his subject, for the purposes of his Chair, and setting out at length before his hearers much which in this country might have been put more concisely, It would be interesting, did space admit, to institute a comparison between some of Dr. Hearn's conclusions and the views put forward in Professor Max Miiller‘s recent Chapter-house Lectures. If we recollect‘rightly the substance of one of the Professor's arguments, he pleaded, and that most eloquently, in favour of Law as a primary conception of the Aryan races. Dr. I-Iearn, on the other hand, seems to make it but a secondary conception among them. We inust confess that on this point we agree with the Professor of Comparative Philology rather than with the Dean of the Faculty of Law. Dr. Hearn says in most decided language that the Aryans had “ no word for law.” Professor Max Muller, if we remember rightly, found such a word in “ Rita.” Here, again, we differ from the Melbourne Dean and agree with the Oxford Professor. And we carry up our belief in the existence of the conception of Law to a more remote period than Dr. Hearn, because we believe that when the Clan and the Family were in existence there was Law. V)/herever there was the conception of an organised society with a recognised head, whether Tribe or Clan Chief, or House or Family Father, there, to our minds, was a definite social, if not strictly political, superior, whose commands obliged the Members of the Clan, Tribe, Household, or Family, within the sense of Austin’s definition. Where there was a Hearth, there was a “Forum domesticum:” where there was a Family, there was a Family Law as well as a Family Worship. If there was, as Dr. Hearn puts it, no organised Aryan priesthood, it was simply because the House Father was the priest of the Household. If there was no organized judicature, it was simply because the Clan Chief and the House Father, the “Paterfaniilias," were alike, in their several degrees, the judicial authorities of their Clan or Tribe, and of their Household. The functions of Priest and judge were combined in the same person, and the descent of those functions being regulated by the Customary Law of Archaic Society, there was no need for a separate organisation. Everybody knew where to find his judge and his Priest, as in the later days, when the King sat in the gate to give judgment. But to say of such a period that there was no Law, seems to us misleading. In later times, of course, when the State had acquired a jural personality, with rights over its individual members, those members, being also members of the Family, became the subjects of two Laws, the Law of the Family, the Primary Law, and the Law of the State, the Secondary Law. In those cases, strikingly exemplified in Roman History, the
State, as might have been expected, gained the day over the Family, and surely, though it may be unconsciously, hastened the break-up of the old law of the House~Father. This is, of course, a phenomenon not peculiar to the decay of the Roman “ Patria Potestas ; ” it is to be seen in operation any day when the interests of the individual come in conflict with those of the State, or where Archaic Family and Household Law comes into conflict with Modern Law and the Modern State. VVe shall probably be able to watch something of this conflict in Bosnia and Herzegovina under their new rulers. We have not pretended to do more than touch upon a few points in Dr. Hearn’s interesting volume. But it deserves to be studied in this country, as well as in Australia, as the work of an earnest and thoughtful writer on the very important juridical questions which are bound up with the History of Aryan Law and Aryan Institutions.
The law relating to the various kinds of joint ownership vested in joint tenants, coparceners, tenants in common, and tenants by entireties, seems to carry back the imagination to the primitive times, when ownership of individuals in severalty had not as yet been evolved out of the common ownership of the family, the sept, and the tribe. In English law joint ownership very early meets the student of Real Property law. Bracton employs the generic term “ participes ” to indicate all varieties of joint owners, of whom we are told “totum tenent et nihil tenent, scilicet totum in communi et nihil separatim per se.” Much quaint and ancient legal lore still lingers about the subject, and also, unfortunately, some doctrines which having outlived their mison d’e'tre are now not merely useless but mischievous. At the present day, almost the only instance where a joint tenancy is a convenience is in the case of mortgagees who are trustees. This being so, it is to be regretted, as was well remarked by Vice-Chancellor Page Wood (Lord Hatherley), in Williams v. Hensman, that in questions of construction, as between joint tenancy and tenancy in common, the Legislature has not made it the rule that express words shall be required to create a joint tenancy, in place of the contrary rule which is established, that words pointing to severalty of interest