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They are often also illustrations of mediæval life which deserve the attention of the student of history no less than of the student of law. To both these classes, at our Universities as well as at our Inns of Court, we heartily commend the instructive volume just published by Sir Travers Twiss.
A Treatise on the Law of Executors and Administrators. Rt. Hon. Sir Edward Vaughan Williams (late one of the Judges of H.M. Court of Common Pleas). Eighth Edition. Ву Roland L. VAUGHAN WILLIAMS, Esq., of Lincoln's Inn, Barrister-at-Law, and Walter V. VAUGHAN Williams, Esq., of the Inner Temple, Barrister-at-Law. Two Volumes. Stevens & Sons. 1879.
Since the Seventh Edition of this well-known standard work was published six years ago, the learned author, the late Mr. Justice Williams, has passed away in a ripe old age, and amidst the esteem and regret of his friends and of the Profession. In the brief Memoir of his Life, contained in the February number of this Review, 1876, we expressed the opinion that his Treatise on the Law of Executors had placed the late Judge in the very first rank of legal authors. " This is indeed,” we said, “a model text-book, admirable in arrangement, lucid in style, and profoundly, but not ponderously, learned. With the exception, perhaps, of the works of Lord St. Leonards, it does not occur to us that any Treatise has, for so long a time, occupied the ground which it covers so entirely to the exclusion of all others as this; and we are, we believe, correct in saying that it enjoys an equal pre-eminence in the United States." To this criticism of the work itself it is unnecessary for us to add anything. The Eighth Edition now before us, which is edited by the author's two sons, appears to have been carefully revised throughout, and duly annotated with reference to the new cases decided since 1873. The law as to executors and administrators has undergone no material change since the appearance of the previous edition, but the alterations in the system of pleading, under the Judicature Acts and Orders, have necessitated the omission of several of the old rules which had ceased to be applicable. In some respects we think the editors have been too conservative in their treatment of the text. They have designedly retained the old nomenclature in use previously to the great changes effected by the Judicature Acts. There may be something to be said on the score of
“convenience” for the retention of the old division of remedies against executors and administrators, into remedies “at Law" and “in Equity;" although we think that even here the reasons in favour of a technically correct phraseology preponderate. But we fail to see the advantage of writing “ Probate Court," instead of the equally laconic“ Probate Division ;' for the cumbrous addition of the High Court of Justice " is necessarily implied, and therefore needs no expression. The Table of Contents, List of Cases, and copious Index, leave nothing to be desired in the way of assistance to those who wish to look up any specific point.
The Succession to the English Crown. A Historical Sketch. By ALFRED BAILEY, M.A., Barrister-at-Law, formerly Student of Christ Church, and Stowell Civil Law Fellow of University College, Oxford. Macmillan. 1879.
Mr. Bailey deals with an important and often very thorny question in a spirit of historical impartiality. He brings an evidently considerable amount of research to bear upon it, but unfortunately, he has adopted Mr. Green's plan of giving no references, without the slight consolation afforded by Mr. Green's general lists of authorities. We can scarcely, therefore, do more than credit Mr. Bailey with the research which we know must have been required to produce his work from the study which we have ourselves had occasion to give it. We regret that Mr. Bailey should have treated the pre-Norman period of our history so briefly. For there, if anywhere, is to be found the germ of the English Theory of Succession to the Crown. That there was, emphatically, a * Blood Royal " before the Conquest is perfectly clear. It was the blood of the House of Cerdic. That within this blood the nearest male (without much regard to legitimacy) was generally considered
promovendus in regem,” is equally clear. But he must be of full age, and otherwise acceptable, or another of the stock would be chosen. This is Teutonic Royalty; membership of a family descended from a mythical Divine, or semi-Divine, ancestor, being generally necessary to election, but election being free within that stock, and even beyond it in case of need. The elections of the Danish and Norman conquerors are tainted with violence; in either case there was practically no other course possible. The election of Harold Godwinson stands out as the one free election outside the West-Saxon Royal
stock. Of Mr. Bailey's suggested descent of Harold from Alfred the Great we do not think much, and his real relationship to the Danish Kings of England was perhaps against him rather than in his favour. Genealogy, however, is in general one of Mr. Bailey's strong points, and he has worked out his entire subject carefully, and stated his views clearly. Those views agree substantially with the doctrine of succession as stated by another constitutional lawyer, Mr. Taswell-Langmead, in his recent Constitutional History. The path which Mr. Bailey has trodden is indeed, as he says, “strewn with embers under which still smoulder controversial fires." It is all the more important therefore, that it should be trodden by men who bring to their work the acumen of legal practice in addition to the training of Alma Mater.
The Law of Domicil, as a Branch of the Law of England, stated in the form of Rules. By A. V. Dicey, B.C.L., Barristerat-Law; formerly Fellow of Trinity College, Oxford. Stevens and Sons. 1879.
Few questions are more difficult to answer than the question, “What is Domicil, and how should it be defined ?” Perhaps no definition has yet been given which is not open to some objection, and certainly the discussion of the Law of Domicil, and its reduction, so far as English Law is concerned, to a body of Rules, forming, as it were, a species of Digest of the Law, was a work worthy of the labour of a highly-trained legal mind. We are glad that Mr. Albert Dicey should have given his attention to this subject, and we welcome the publication of his able and scholarly work. Although treating his subject “as a Branch of the Law of England," Mr. Dicey has been inevitably led to produce a book which is also, to some extent, a treatise on an important branch of International Law. At least eleven out of the twelve valuable “ Notes," printed at the end of the volume, have a direct bearing on the Conflict of Laws arising between States, and several of them contain useful statements of Foreign Law. Our old friend Sottomayor v. De Barros, of course, appears and reappears in Mr. Dicey's pages. We have never been able to free our own minds from a certain dubiety whether the law of Portugal on the subject of the marriage of first cousins is strictly what it has been stated to be. We doubt whether there is a distinct prohibition by the Civil Law, like the Virginian prohibition of intermarriage between the white and black
We think it is only through giving effect to the Canon Law that Portuguese Law can be said to prohibit the marriage of first cousins; in other words, we question whether the incapacity is not canonical rather than civil.
A Practical Treatise on the Law of Rating. By EDWARD JAMES CASTLE, of the Inner Temple, Barrister-at-Law. Stevens & Sons. 1879.
Mr. Castle has undertaken to produce a general Treatise on the important and somewhat intricate branch of English Law which deals with Rating, and has accomplished his task with considerable success. The work is ably executed throughout; and while exhaustive in its treatment, and in some respects, as in setting out some of the judgments in decided cases, unusually full, is nowhere needlessly diffuse. The book is divided into two parts, treating respectively of Occupation and Rateable Value. In Part I. in addition to the subject of occupation per se, the various descriptions of rateable property are discussed, together with the statutable and other exemptions from rating. The important Rating Act of 1874, which, among other provisions, abolished the exemption which all mines other than coal mines had enjoyed under the Act of Elizabeth, is set out in extenso in the text with a full commentary. Mr. Castle's English in introducing this Statute seems hardly to express his meaning. He regrets that the Act of 1874 did not bring into rating, market tolls, ferries, " and other properties apparently that upon principle ought to be rated.” Now he evidently meant to write "properties that apparently upon principle ought to be rated." In Part If. Rateable Value is considered under all its various aspects, concluding with a useful chapter on Deductions. As a whole we believe this book will be found of practical value not only to the lawyer, but also to landowners and agents.
A Draft Code of Criminal Law and Procedure. By EDWARD Dillon Lewis. C. Kegan Paul and Co. 1879.
No apology was needed for the continuance by Mr. Lewis of the work into which he had already gone at some length when the fact became public that Government had taken up the question of Codification, and that Sir James Stephen had been entrusted with the task of preparing the Government Draft.
For such a work as this, in a country like ours, where Codification is still in embryo, and where public discussion has to be invited, and Parliamentary discussion to be faced, it is not too much to say that the more labourers we can have in the field the better will be our chances of ultimate success. We can well believe that Sir James Stephen himself, together with his eminent colleagues in the Revision of the Criminal Code Bill, will be far better pleased at the publication of Mr. Lewis's Draft than they would have been had he decided that it would be a work of supererogation. Some of the proposals put forth by Mr. Lewis are, so far as we know, peculiar to himself. He would, for instance, do away with the present Court for Crown Cases Reserved, while, on the other hand, he would constitute, out of existing materials, with slight additions, a new Supreme Court of Criminal Judicature, embracing a High Court of Criminal Justice, and a Court of Criminal Appeal. This alteration could, he thinks, be effected with little difficulty, and its result would be so to lighten the labours of the existing Judicial staff that the work in the Civil Divisions would be got through much more expeditiously. It may seem a pity that while he was about it, Mr. Lewis did not, among other changes, propose a change of style in the entire Judicial system. No practical benefit, and much unpractical confusion, is the only result that we can see from the certainly clumsy nomenclature given us by the Judicature Acts. It requires a mind of more than ordinary analytical power to distinguish the possible functions of a “ High Court of Justice” from those of a “Supreme Court of Judicature,” whether in Civil or Criminal Law, and we really can see no reason why it should be a mode of designation “ individuam vitæ consuetudinem continens." The old " Supreme Court of Sudder Dewannee and Sudder Foujdarree Nizamut Adawlut," at Fort William, certainly seemed to grow downwards rather than upwards when it became the “ High Court of Justice” there. Several of the points raised by Mr. Lewis in regard to our existing Criminal Law have been the subject of keen discussion among Criminalists both in our own country and abroad. The present rules respecting the exemption of lunatics, which may perhaps be said to share in the difficulties that surround the entire subject of lunacy in relation to the law and its administration, have been considered from the point of view of French Jurisprudence, by M. Babinet, a distinguished Councillor of the Court of Cassation in Paris, to whose views and criticisms we drew attention in our issue for February last