« PreviousContinue »
judiciously annotated by the very competent pen of M. Charles Lyon-Caen, Agrégé of the Paris Faculty of Law, who has made this subject peculiarly his own. Our own Legislative work in Parliament during the year 1877, is ably treated in a general notice by M. Lebel, and in several of its chief details by M. Babinet and M. Bertrand, whose views on English Criminal Codification we have already brought before our readers.
OUR FOREIGN CONTEMPORARIES.
Since we were last able to devote some space to the general consideration of the progress of our Juridical Contemporaries on the Continent, apart from the mention which we have given from time to time of special articles, changes and developments have been carried out in the conduct of several among them, and we are glad to record that they have only indicated fresh vigour. The Revue de Droit International (Gand, Rue de l'Université), has lost the Editor-in-Chief who had so long been its presiding spirit as he had been its founder. But the mantle of M. Rolin-Jacquemyns could scarcely have fallen on better shoulders than those of his successor in office, M. Rivier, Professor of Roman Law in the University of Brussels, who succeeds him also as General Secretary of the Institute of International Law. The articles published under Professor Rivier's editorship have been both varied in their matter and instructive in their mode of dealing with the subjects discussed. It has been a source of sincere pleasure to us to find that the views of Professor Esperson, of Pavia, on the question of the Capitulations in Cyprus (Revue, 1878, commencing at p. 587), accorded in the main with those to which expression was being given contemporaneously in our own pages. And we are glad to note that the interesting article by M. Ernest Nys, on the Papacy and International Law (Revue, 1878, commencing at p. 501) has been translated into English, and republished in pamphlet form (The Papacy considered in Relation to International Law, by Ernest Nys, Docteur en Droit; Translated from the French by the Rev. Ponsonby A. Lyons. Henry Sweet. 1879), so as to be more generally accessible. The names of such writers as Professors Bluntschli, of Heidelberg; Henri and Charles Brocher, of Geneva ; Bulmerincq, formerly of Dorpat ; Hon. W. Beach Lawrence; M. Asser, of Amsterdam ; Mr. Westlake, Q.C., and Prof. Holland, and others who have contributed during the past
year, would suffice, were it necess
essary, to guarantee at once the continued value and the continued International character of the Review. M. Rivier's own signed contributions, during this period, though not numerous, have included a wide survey of the field of International Jurisprudence, and able summaries of the results of several of the most important International Congresses held in 1878.
The Nouvelle Revue Historique de Droit Français et Etranger (Paris. Larose : Rue Soufflot) has devoted considerable space to articles which show its continued title to the epithet Historical, always a leading feature in its various former issues, under the fostering care of M. Laboulaye, M. de Rozière, and others. We draw attention elsewhere to an erudite dissertation by M. Jacques Flach, one of the editors, on a question of Juridical Epigraphy, connected with the Mining Laws of the Roman Empire. M. Fustel de Coulanges, the eminent author of “ La Cité Antique," so well known to all students of Archaic Jurisprudence, has contributed a valuable article on Drawing by Lot, as applied to the Nomination of the Archons of Athens. M. Crémazy, in an article on Mussulman Law in French India, gives us information on a subject upon which it is not easy to find authorities in this country. M. de Rozière, in a paper on the Ancient Statutes of the City of Rome, read before the Academy, discusses the recent researches of Sig. Vito La Mantia, in the course of which the Cardinal Secretary of State allowed him three hours for the perusal of a MS. in the Vatican Library! Fortunately there are other MSS. at the Capitol and in the Ottoboni Library. But we certainly re-echo the wish of M. de Rozière that a day may soon come in which the Vatican shall throw open its doors to the student.
The Revue Générale du Droit, de la Législation, et de la Jurisprudence (Paris. Thorin: Rue Médicis), has paid attention to Law and Jurisprudence in all countries during the past year, and its choice of subjects has been extremely varied. As a rule the articles are relatively brief, and therefore more numerous than our system admits. Sir H. Sumner Maine's Oxford Lectures on the Juridical Organisation of the Family among the Slavs and Rajputs, among the latest and not the least interesting fruits of his studies, have been translated in the Revue Générale, and are about to appear in a collected form in French, with a preface from the learned pen of M. Fustel de Coulanges. M. Georges Louis, whose works on the English Criminal Code Project, and other subjects, we have already had occasion to
notice, contributes a summary of Foreign Legislation in 1877, for which his official position as one of the Secretaries of the Departmental Committee on that subject, at the French Ministry of Justice, gave him an especial fitness. M. Crémazy has treated the Hindoo Law in force in French India, with the same aptness as he discussed the Mohammedan Law of that colony in the Nouvelle Revue Historique. M. Fliniaux, the author of a work on the Law of Copyright which we have already more than once cited in these pages, has added to the growing literature of this subject two articles in the Revue Générale (Jan.-Feb., and March-April, 1879), to which we shall probably have occasion ere long to draw the attention of our readers more specially.
The Journal de Droit International Privé (Paris : Marchal et Billard, Place Dauphine), has added Sir Robert Phillimore and Mr. Beach Lawrence to the number of those distinguished Jurists under whose patronage it is published. We have alluded elsewhere in our current number to the part which its editor-in-chief, M. Clunet, has taken in various meetings recently held in London, and also to some of the principal articles which have appeared in its pages. It may therefore be sufficient to say here that the practical utility and literary ability of the Journal continue to be of a high order in all questions relating to Private International Law.
The Rivista di Discipline Carcerarie (Roma : Tip. Artero), edited by the Inspector-General of Prisons for the Kingdom of Italy, has, as might have been expected, given a good résumé of the proceedings of the Stockholm International Prison Congress, of which its editor, Commendatore Beltrani Scalia, was himself one of the official members. But its value has by no means been confined to this one point. In many other matters connected with Penal Law, and its administration in the various States of Europe, the Rivista has maintained its position as one of the best and most authoritative sources of information.
The Revista de los Tribunales (Madrid : Puerta del Sol, 13), edited by Don Vicente Romero y Giron, assisted by other distinguished Spanish Jurists, has given proof (noticed by us elsewhere) of wide-reaching sympathies in all matters relating to Jurisprudence and the administration and reform of the Law. Carried on in its present spirit, the Revista cannot fail to be a powerful auxiliary in the necessary work of Law Reform and Codification in Spain. We wish it all success as a high-class literary organ of Spanish Jurisprudence.
The erroneous statement, due to a mistake of a telegraph operator, that the Basque Provinces were to be placed in a state of siege during the elections, perhaps served to draw more attention to Spain than it might otherwise have received during the Parliamentary crisis. Some of the questions treated in our able contemporary the Revista de los Tribunales, will, we think, be found to deserve study, as throwing considerable light on the progress of Spanish Thought on important Juridical and Political problems of the day. In several of its numbers, published during the last half of 1878, the Review which we cite has discussed the Reform of Legal Study, a subject fruitful of interest, and treated by the practised pen of Manuel Torres Campos: the Scientific Development of the Fundamental Conception of Law in the 19th Century, an elaborate Essay, in which the principal modern theories are passed in review, by Sr. Duran-y-Bas: besides publishing a Discourse, pronounced at the opening of the Session of the Madrid Scientific and Literary Athenæum, by Sr. Moreno Nieto, on The Modern Political Problem. It has also translated, and to that extent made its own, an Italian view of The Just Representation of all Electors, by Dr. Attilio Brunialti. Under the present circumstances of the country in which these various subjects have been given a prominent place in Legal Literature, it may not be without interest to see what is the line of Juridical and Political Reform which appears to commend itself to the mind of cultured Spain. Dr. Brunialti's Essay is specially introduced by an editorial note, as germane to the consideration of the Electoral Law actually in preparation. Although, therefore, it was written in view of the modification of the laws of a different country, its publication under its new form shows that its matter was held applicable to the case of Spain. “ If it be conceded," says the writer, “ that some Electoral Reform will shortly take place, of what kind will it be? Will it be limited to increasing the number of the electors, or will it go further, and attempt to secure the just representation of all electors ?" This last, of course, is the goal at which both Dr. Brunialti and the Revista de los Tribunales aim.
It interesting to observe that Dr. Brunialti claims for Electoral Law Reform that it is of no party.
“ Liberals and Conservatives," he says, “ alike agree in this, if in nothing else." That is a remarkable fact to start with, and one which ought to secure the attainment of the desired object by the most expeditious and least dangerous road possible. That the Elective Chamber as distinguished from the Senate, the House of Commons as distinguished from the House of Lords, ought to be the true representative of the body from which it derives its being (i.e., the People), is an axiom of Dr. Brunialti which no one accustomed to Constitutional Government would for a moment deny. It is on the further question, how best to make the Elective Chamber thus truly representative, that differences of view make themselves manifest. That in any deliberation the voice of the majority must prevail is self-evident. It was so in the Agora, and in the Landesgemeinde, and it must be so in all Representative Assemblies. But the minority now-a-days rarely secedes, though we have had one great recent example. Under Representative Institutions, Dr. Brunialti points out, there is necessarily a certain loss of personal power. In the Agora or the Landesgemeinde each citizen could influence the debate by his speech. But when he has entrusted his vote to a representative he has lost a proportional part of his influence. The decision belongs of right to the majority, but representation is the right of every elector. The Genevan Publicist Considérant, wrote to his countrymen in 1846 that the confusion of two entirely distinct things, the representative vote and the deliberative vote, was a fundamental error of modern times. In similar strains M. Naville wrote that the confusion of these two ideas not only created fictitious majorities, but also took away from the minority the sovereign right of decision. And Louis Blanc, in 1848, declared that the “ absolute reign of the majority over the minority is not the Government of the People by itself, but simply the Government of the lesser number by the greater." It may be well to remember that Bluntschli may be cited in the same sense.
The principal Electoral systems of Europe and the United States are passed under review by Dr. Brunialti. His favourite, after weighing all the chief pros. and cons., is Hare's Quotient, with modifications. This system Brunialti regards as an ideal towards which approximation may gradually be made through the diffusion of popular education. In fact, it may be said that his scheme is Proportional Representation.