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LENGTH IN SUBSEQUENT ISSUES.]
The Constitutional History of England. By F. W. MAITLAND, , LL.D. Cambridge: The University Press. 1908.
In this work, edited by Mr. H. A. L. Fisher, are collected the notes of a course of lectures delivered a good many years ago by the late Professor Maitland on his appointment to the Readership in English law at Cambridge. Naturally they are of a quite elementary character. They embody little research, and amount only to brilliant exposition. But the exposition of elementary Constitutional law by a consummate historian like Maitland, cannot but be of the utmost interest and service. The ordinary constitutional text-book, in its anxiety to present the student with a clear-cut, intelligible account, is very apt to treat the inevitable uncertainties of this obscure subject in two dangerous ways—to slur them over, or to pronounce dogmatically upon them. Both courses bewilder the beginner. In the present work, Maitland never hesitates to say that things "seem or “appear” to have happened in such-and-such a fashion, when that is all that can be said. In endeavouring to pierce the mists of history, this must again and again be all that one is able to say, and the lawyer is wise who resists the temptation to import legal precision into a text-book of constitutional history. The volume also embodies many valuable original ideas, and it has all the charm of a connected treatise by the really great proseur who wrote it.
The short but masterly analysis of the idea of “Constitutional law” (p. 527, et seq.) has never been better done. Its criticism of Austin and Holland's definitions leaves nothing to be desired. This concluding section, and the history of the earlier periods, strike us as much superior to the account of the 18th- and 19th-century developments : and we own to a regret that Maitland did not write more in the domain of speculative jurisprudence. On the whole, that would have been a greater work for English law than the investigation of its early mediæval antiquities. It can readily be supposed that he finds history give “a standing denial of that (Austin's) theory of sovereignty, which has become orthodox in our own times.” There are some errors in points of legal detail in the latter portion of the book. For the statement that the County Court jury consists of five (p. 465), we may perhaps absolve the Editor. But it is disconcerting in a text-book for beginners, where one might at least be accurate to find that in 1857 ecclesiastical jurisdiction in testamentary and matrimonial matters was transferred to the new County Courts (p. 464). At p. 476, no hint is given that writs of error, as well as the process by way of Crown Case Reserved, have been abolished And a student who has heard nothing about any appeal from magistrate to Quarter Sessions will not know what to make of the statement that "an appeal to Quarter Sessions on questions of law can be brought before the High Court.” It may be strongly doubted that there is a line left out here. The perfect mastery of Maitland over detail, and his freedom from pedantry, are nowhere better shown than in the few words in which he deals with the position of a Commissioner of Assize before and after the Act of 1873.
Select Cases concerning the Law Merchant. Vol. I. Edited for the Selden Society by CHARLES Gross, Ph. D. London: Bernard Quaritch. 1908.
It is always a matter of great antiquarian interest to read the publications of the Selden Society. Treading paths unfrequented by the every-day lawyer, one gets glimpses of old customs, courts, and procedure that seem to bring the reader face to face with his mediæval ancestors. The present volume comprises cases tried in fair staple and tolsey courts, small local tribunals which dealt almost entirely with cases affected by the law merchant. As a rule, these courts, presided over by the mayor, bailiffs of the borough, or the steward to the local magnate, were held at the time of some fair, such as Carnarvon, St. Ives, and other places. The justice dispensed was rough and ready, but effective. At the piepowder court of Colchester held in 1485, the following speedy termination of a case is recorded. The Plaintiff sued for the recovery of a debt at 8 a.m., the Defendant was summoned to appear at 9 o'clock. He did not come at that hour, and the sergeant was ordered to distrain him to come at 10 o'clock, at which hour he made default. Similar defaults were recorded against him at i and 12 o'clock. At the latter session, judgment was given in favour of the Plaintiff, and appraisers were ordered to value the Defendant's goods which had been attached. They made their report at 4 o'clock, and the
goods were delivered to the Plaintiff. In these days when justice is dispensed in a more leisurely fashion, the litigant may be forgiven if he sighs for a partial return of the good old days. These courts were called “piepowder,” a contraction or distortion of "pie poudres” or “pede pulverosi,” from the fact the litigants were chapmen with dusty feet who wandered from fair to fair.
As usual, the learned Editor has brought to bear on his work a wealth of erudition, coupled with an infinite capacity for taking pains. Miss K. S. Martin and Miss Gladys Bradford have done much useful work, and, as usual, the volume has enjoyed the paternal help of Sir Frederick Pollock and Professor Vinogradoff.
A Code of the Law of Actionable Defamation. By G. SPENCER BOWER, K.C. London: Sweet & Maxwell. 1908.
Mr. Bower's aim is a very ambitious one, no less than a code dealing with the civil or "actionable ” law of libel. It excludes criminal libel though many of such cases are cited, but includes slander. It also includes “quasi defamation,” or wrongs which do not strictly amount to defamation, but "in all of which, except one, an ingredient in the cause of action is injury to personal reputation." These wrongs are (1) Dishonouring by a Banker of Customer's Cheque; (2) Defamation causing damage to a person other than the party defamed; (3) Malicious Publication of False Non-Defamatory Matter causing Actual Damage ; (4) False and Malicious Disparagement of Property causing Actual Damage ; (5) False Statements in relation to the Character of a Candidate at a Parliamentary Election. The Code consists of 64 Articles. There is “running commentary" of footnotes giving and discussing “the living authorities” on which the Articles are founded ; and nearly half the volume is taken up by 21 appendices. One feature of the Code worth noticing is the amount of space devoted to the rules as to allegation and burden of proof, questions of law and fact. The law as to Newspaper Libels is treated separately, and the Author does not show much sympathy for “the class of people who trade in news.” The appendices are full of interesting discussions and comments, illustrated with many literary references, such as the striking example of libel by insinuation from Othello. There will also be found a strong dissent from the decision in Wennhak v. Morgan. Mr. Bower most properly attaches great importance to the exactness of language in a code, and employs
to a certain extent a terminology of his own which he justifies at some length. He also adopts a valuable uniformity in employing the words “libel” and “slander,” consistently to indicate the act of publication and not the thing published. This last is termed “libellous matter” or “slanderous matter." The Code shows throughout great care, acuteness and labour, and the notes legal learning, literary knowledge, and analytical power.
Small Holdings and Allotments. By G. A. JOHNSTON, M.A., J.P. London : Effingham Wilson. 1908.
The law of small holdings and allotments has now become a most important branch of our land legislation. As nearly all the statutes on this subject refer to one another, and are to be read together, the lay mind becomes confused, and the busy lawyer has his labours enormously increased. To obviate all this Mr. Johnston has striven to place together the different sections in different Acts bearing upon the same point. Of course this entails the reader jumping about from one part of the book to the other, but the scheme certainly makes for simplicity, The Introduction is divided into two Parts. Part I deals with Small Holdings, pointing out how various bodies and individuals are affected ; Part II embodies the same ideas so far as affect Allotments. Then the various statutes are collected which deal with the subject as a whole, and finally we have presented to the reader various Rules and Official Circulars issued by the Board of Agriculture. The book shows considerable originality, research and careful compilation, and should be of great practical utility to councils—borough, urban district and parish-also to landowners, tenant farmers and other persons whose respective interests are regulated by this branch of legislation. The Index is comprehensive, the Table of Cases and List of Statutes exhaustive. Speaking generally the work appears to appeal to a marked extent to readers both lay and legal.
The Roman Law of Slavery. By W. W. BUCKLAND. Cambridge: The University Press. 1908.
This appears to be the first systematic legal treatment of the subject in England, except the smaller works of Blair and Bishop Brownlow, which are economical as well as legal. Everything that can be said has been said, and well said. Although one may not in every point agree with Mr. Buckland's conclusions, there is no doubt that he has worked out every point by independent thought, and this sometimes leads to difference from the standard authorities on Roman law in general. The work, which is voluminous, treats most of the relevant texts of the Corpus Juris, with occasional references to English law, though, of course, not a word of it is or was good English law. The English race, at least in England, have missed the feeling of satisfaction, no doubt felt by the Romans, in taking their breakfast kidneys from the hands of a Plautus or in watching Epictetus grilling a chop. The curious point in Gaius iii, 146 as to hire or sale of gladiators, does not seem to be noticed, nor does that in iii, 96 as to the oath exacted from a freedman. Something might have been said with regard to the enlistment of slaves for military service under the later Empire, when every man was of importance, free or not. The old dignitas of the soldier (Cod., xii, 34, 7), disappeared in the stress of events. The book is a credit to English research and may safely be consulted on any point which it touches.
The Annual County Courts Practice, 1909.
2 Vols. Honour Judge SMYLY, K.C., and W. J. BROOKS, M.A. London: : Sweet & Maxwell. 1908.
Although for the last few years the Civil Statistics have shown a continuous falling off in the number of County Court Cases, there is still a vast amount of business transacted, and cases of increased importance are now taken in consequence of the recent legislation which most years add to the burdens of County Court Judges. The Editors hoped to be able to add a new County Court Act in this edition, but their hopes have been disappointed. The present edition retains its familiar features, and although the new rules have now come into force, there are no very important alterations to notice. The addition to Ord. XXVI, r. 16, which was necessitated by Llewellyn v. Rowland, will probably be useful to judgment creditors. Another recent case
an important branch of County Court Practice, and enables a plaintiff to add an alternative claim under the Employers' Liability Act 1880 in an action of negligence remitted from the High Court. We are told that business under the Workmen's Compensation Act 1906 is increasing with great rapidity, and considerable attention is paid to that subject, and all the recent cases are referred to, including the somewhat curious decision of the House of Lords