« PreviousContinue »
Committee for Congresses and Conferences during the International Exhibition, and some account of its proceedings, however brief, would have added to the value of Sir Sherston Baker's work. For convenience of size and clearness of type, the book leaves nothing to be desired.
The Practice and Procedure of the House of Lords in English, Scotch, and Irish Appeal Cases, under the Appellate Jurisdiction Act, 1875. By Charles MarsH Denison and Charles Hen DERSON Scott, of the Middle Temple, Esqs., Barristers-at-Law. Butterworths. 1879.
The ancient Appellate Jurisdiction of the House of Lords, the subject of so much controversy in recent years, and which was at one time actually abolished prospectively, as to England, by the Judicature Act, 1873, may now be regarded, we trust, as finally re-established by the Appellate Jurisdiction Act, 1876. In this country reform has ever been preferred to abolition : yet to the imminence of abolition we mainly owe those two salutary provisions—the introduction of legal peerages for life, and the power of the House to continue sitting for judicial purposes, notwithstanding the prorogation of Parliament—which alone rendered the retention of the Lords' jurisdiction possible. Messieurs Denison and Scott have undertaken the useful and necessary labour of providing for Counsel, Solicitors, and Parliamentary Agents, a guide to the practice in Appeals to the House of Lords, as remodelled since the passing of the Appellate Jurisdiction Act, 1876. The work opens with an Introduction, containing an interesting, and for the authors' purpose, sufficiently full sketch of the origin and growth of the Lords' appellate jurisdiction, from its remote germ in the judicial attributes of the Witena-gemột of our Anglo-Saxon ancestors. This is followed by a comprehensive and clearly-written exposition of the present Practice, divided into chapters, themselves sub-divided by separate headings. In an Appendix are grouped together a mass of useful information, comprising the Appellate Jurisdiction Act, 1876; the Scotch Statutes, affecting appeals to the Lords; a collection of twenty-three Forms; Precedents of Bills of Costs, revised in conformity with the Act of 1876 ; Directions for Agents ; the Standing Orders applicable since the ist November, 1876, and a Scale of the Parliament Office and House fees payable respectively by the Appellant and Respondent.
In an elaborate and ingenious note (p. 175) to Section 3 of the Appellate Jurisdiction Act, the authors (referring to the recent cases of Sottomayor v.De Barros and Niboyet v. Niboyet) point out that it may possibly be held that an appeal lies directly from the Divorce Division of the High Court to the House of Lords, or that an appeal from the Divorce branch of the Probate, Divorce and Admiralty Division of the High Court lies first to the Court of Appeal, and thence to the House of Lords. “ In the event,” they proceed, " of it being held either that there is a double right of appeal, both to the House of Lords, under the 3rd Section of the Matrimonial Causes Act, 1868, and to the Court of Appeal, under the 19th Section of the Judicature Act, 1873 ; or that, under the latter section, there is a right of appeal exclusively to the latter Court, points of considerable difficulty
Thus, on the first hypothesis, it may be that on an appeal being brought directly to the House of Lords from a decision of the Divorce Division declaring a marriage void, their Lordships being equally divided in opinion, the rule semper præsumitur pro negante would prevail, and the decision annulling the marriage would stand affirmed, while, on the subsequent appeal to the Court of Appeal, that decision might be reversed, and the marriage declared to be valid, and, on appeal to the House of Lords, their Lordships being again equally divided in opinion, the same rule would apply, and the decision of the Court of Appeal, declaring the marriage valid, would be affirmed.
and the absurd result might follow, that a man, having legally contracted a fresh marriage after the first judgment of the House, declaring his previous one void, had been pronounced, might find such previous marriage held valid by the second judgment. On the latter hypothesis, also, questions of grave difficulty might arise. Thus, by the 57th Section of the 20 & 21 Vict., c. 85, it is enacted that when the time hereby limited (one calendar month, 31 & 32 Vict., c. 79, S. 3) for appealing against any decree dissolving a marriage shall have expired, and no appeal shall have been presented against any such decree, or where any such appeal shall have been dismissed, or where in the result of any such appeal any marriage shall be declared to be dissolved, but not sooner, it shall be lawful for the respective parties thereto to marry again, as if the prior marriage had been dissolved by death. But if an appeal lies from the Divorce Division to the Court of Appeal, under the 3rd Section of the Appellate Jurisdiction Act, 1876, an appeal will also lie thence to the House of Lords, and the
period within which such an appeal may be brought is fixed, by Standing Order No. 1, at one year.
Thus the period, during which the disability to marry again continues, would be extended from one month to one year, plus the time allowed for appealing from the Divorce Division to the Court of Appeal, which is not fixed by any rules applicable to Divorce causes. In these circumstances it may be doubtful whether a fresh marriage, contracted by a divorced person within the time now allowed for appealing, is valid, and, consequently, whether the issue of such marriage are legitimate."
On the whole, we can congratulate the authors on having succeeded in providing the Practitioner with a conveniently arranged and compact vade mecum, replete with all necessary information, and rendered easy of consultation by a wellexecuted analytical Table of Contents and Index.
The Law of the Farm: with a Digest of Cases, and including the Agricultural Customs of England and Wales. By HENRY Hall Dixon, Barrister-at-Law. Fourth Edition. By Henry PERKINS, Barrister-at-Law, of the Midland Circuit. Stevens & Sons. 1879.
“ Dixon's Law of the Farm" has long enjoyed the reputation of being a convenient and trustworthy repertory of information on all the numerous legal questions incidental to the occupation of a Farmer. In preparing the Fourth Edition, the present Editor has carefully revised the whole work, and while rejecting some unnecessary matter has duly noted up all cases interesting to the Agriculturist. The permissive character of the Agricultural Holdings Act has prevented it from exercising much practical influence: hence the necessity for still setting out the various “customs of the county” prevailing in the different counties of England and Wales. The extent and variety of the other topics treated of may be gathered from the headings of the chapters which are devoted successively to Interests in Land, Easements, Trees and Fences, Dangerous Animals, Water, Servants, Conveyance of Horses and Cattle, Distress, Husbandry Covenants, Trespass and Game, Tithes, Landlord and Tenant, Contracts and Sales, and Horses and Cattle. The country Solicitor will find this work a valuable compendium of practical information on matters concerning which he must frequently be called upon to give off-hand advice, and to both Landlords and Agents it cannot but prove a very useful addition
to their bookshelves. The Index appears to be adequate and carefully compiled : and for the convenience of general readers the references to cases are, as in former editions, omitted in the body of the work and confined to the “ Index of Cases."
Henrici de Bracton de Legibus et Consuetudinibus Angliæ Libri Quinque. Vol. II. Edited by Sir Travers Twiss, Q.C., D.C.L. (Published under the direction of the Master of the Rolls.) Longmans. 1879.
In this fresh instalment of Bracton's work, Sir Travers Twiss brings forward much new and interesting information, which he regards as tending to fill in the hitherto scanty outlines of our great mediæval jurist's life. The outlines so filled are of necessity still to some extent conjectural; but, we think it may be conceded that the author of the "Summa" of English Laws and Customs, the Azo, or Irnerius, of mediaval English Jurisprudence, held office at different times as Archdeacon of Barnstaple, and Chancellor of Exeter, and that “Bracton's Mass," in Exeter Cathedral, was a foundation in memory of the distinguished jurist. It may still be a question how far “Dominus Henricus de Bracton " had proceeded in the matter of an ecclesiastical tonsure. The history of the Middle Ages is full of instances of provision being made by ecclesiastical benefices for persons whose lives were spent in secular work, but whom Popes or Emperors or Kings desired to honour and reward.
The Eildon Hills are to this day a memorial of the “uncanny” fame of at least one person thus honoured, whose name became a very synonym for a wizard—that Michael Scott, who knew the word that cleft the Eildon Hills in three. “ Quell' altro Michele Scotto fu, che veramente delle magiche frode seppe il giuoco.” And, therefore, the great poet of the Middle Ages places him in the fourth " Bolgia " of Hell, and assigns him a suitable punishment. Yet it is on record [Regesta Honorii] that this very Michael, this renowned wizard, who is claimed as by birth one of the "Magnates Scotiæ," was granted permission, on account of his learning, to hold two benefices in England, and was even pressed by Honorius III. to accept the Archbishopric of Cashel, which he modestly declined, alleging his want of knowledge of the Irish language. And when Gregory IX. succeeded Honorius, one of the very first letters he wrote as Pope, on the 28th April, 1227, was to recommend the learned Master Michael Scott to the care of Stephen Langton,
Archbishop of Canterbury, to the end that one who “ burning from childhood with the desire to learn languages,” and who “ not content with Latin literature, had applied himself with commendable zeal to the study of Hebrew and Arabic,” should be rewarded with “a suitable benefice.” Henry de Bracton was certainly neither astrologer nor magician, and although not acquainted with Hebrew and Arabic, he was no doubt much more fitted for an Archdeaconry than Michael Scott for an Archbishopric. Dean Church seems to have brought forward a comparatively modern case of lay preferment in the person of Edmund Spenser. At least it is certain that there was one “ Edmondus Spenser, Prebendary of Effin [Elphin],” mentioned in 1586. The Dean asks who was this Edmondus, and goes on, as we think, to supply the answer by noting the fact that “Church preferments were under special circumstances allowed to be held by laymen." (English Men of Letters. Spenser. By R. W. Church, D.C.L., pp. 166-7.)
The evidence which Sir Travers accumulates in favour of a steady growth in Scientific Jurisprudence in England between the eleventh and thirteenth centuries forms not the least interesting part of the work which he has undertaken. We quite believe that the facts adduced justify the learned editor's conclusions, and indeed we should have been surprised if the result of his researches had been different. We should have had to explain the disparity between England and Continental countries by the geographical fact of her isolation. But we should have required very much stronger evidence for the absence of such a scientific movement than for its presence.
There can be no question that the whole of Western Europe took a fresh start in the eleventh century, and that Jurisprudence profited as much as Theology by the release of the Western nations from the fears under which they had freed their serfs and endeavoured to make their peace with Heaven at the close of the tenth century, “appropinquante mundi fine." Moreover, it was next to impossible that Norman Jurists, whether ecclesiastical or secular, should not have brought England into direct relation with the spirit of the schools which were making Bologna, Pavia, Padua, and Paris, famous among the nurseries of European learning, and inciting monarchs and those who judged the earth to be wise in their generation, and found “ studia ” of their own for their subjects. We wish that space admitted of our extracting some of the many quaint illustrations which Bracton employed to enforce his teaching.