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perhaps not less than one-fourth of the former should be mingled with the latter. Again, the granting of trial by jury should not be a matter of
It should be by Rule, open to opposition by the other side, to be granted at the discretion of the court or judge, and the cost of summoning juries should be also made discretionary. The new system thus introduced would, we believe, work well ; and the greater number of cases would be appropriately adjudicated on by the judge.
We are, in fine, inclined strongly to concur with Mr. Brown when he says
"Let all ordinary cases be heard by a man of superior discernment and practised skill, whose natural powers have been sharpened by a life spent in forensic contests; who cannot be easily deceived by a witness, because he is conversant with every kind of testimony, nor by an advocate, because he has been an advocate himself; who is fit to hear, and to estimate at its true value, every species of evidence hitherto excluded, which may open an avenue to the truth ; whose attention is not to be exhausted by the length, nor his comprehension distracted by the complexity, of the evidence: give the suitor, I say, a man with these qualities, who performs his functions under the public eye, and who is in no hurry to get away to his shop or his farm; whose very trade and business it is to weigh, investigate, and decide on questions of doubt and difficulty, in a word, let the facts be decided by the same experienced judges as the law, and the whole body of the law will feel renewed and invigorated by the change. A great part of its supposed uncertainty will vanish, new light will pour in from sources of evidence now shut up, the scales of justice will be held with even hands, the heavy grievance of new trials will be vastly diminished, the suitor will obtain his rights with greater speed, economy, and certainty, and the criminal will no longer find refuge in the sophistry of counsel or the weakness of juries."
Where we differ from Mr. Brown in the above forcible passage we have already attempted to show; but we are much mistaken if the general truth of his views are not growing to be those of the most intelligent of the profession and public.
1 Hearsay evidence is very valuable, but is now excludel, because a jury is incapable of attaching its proper value to it. If they could distinguish degrees of credibility, much truth would be exposed to view which now cannot be intrusted to meet their ears.
VOL. VII. NO. XIV.
ART. V.-Selwyn's Abridgment of the Law of Nisi Prius.
Twelfth Edition ; with considerable Alterations and Additions. By DAVID POWER, Esq., Q.C. London : Stevens & Norton, 1859.
“SELWYN'S Nisi Prius” is a curious example of illogical "SEL
abbreviation of titles in a book. Selwyn's “ Law of Nisi Prius” is no better, while it is longer. It would require some patience to explain, to a foreign jurisprudent, the sequence of ideas by which the British lawyer has arrived at the comprehension of the phrase by which the popular work named at the head of this article is known; now, the first sentence of its preface thus explains the nature of the book :-" The object of the following work is to investigate and explain that branch of jurisprudence which teaches the nature and extent of the remedies prescribed by the law of England for the redress of private wrongs.”. It being admitted that Nisi Prius means neither “jurisprudence" nor “remedies” nor" private wrongs," it would be curious further to point out to an inquiring stranger, that the proviso in the process, where the words Nisi Prius occur (which so curiously have been employed to denote a form of trial), has not even been in use since the Common Law Procedure Act, 1852; for by the 104th section of that statute, the distringas juratores is abolished. But the authority of the “judges of Nisi Prius” never was derived from the distringas, but by the commission of assize; and, indeed, the want of a distringas in older times would be aided by the verdict.
Not so an “ILL distringas; e.g., Holt, C. J., remembered a case wherein Saunders, of counsel at the bar, dropped the distringas out of his hand that he might want a distringas, which would be aided, and not keep and shew an ill one, which would be naught.”—(Bullock v. Parsons, Salk, 454.) We shall always keep the term, nevertheless, of “Nisi Prius,"
because it is convenient; and the new edition of “Selwyn's Nisi Prius,” edited by Mr. David Power (with the aid of Mr. Wolferstan and Mr. Baugh Allen), will be found as useful as a circuit companion and for general reference, as the former editions were when trials took place under older systems of procedure.
The edition with which we have hitherto been familiar is the eleventh, published in 1845, and which, we believe, owed its chief improvement and revision to Mr. Romaine, the present able secretary to the Admiralty; and our experience of the work is this, that for those who already are acquainted with its contents, and understand its arrangement and defects, it is exceedingly useful for reference on circuit, and on any emergency where elaborate treatises are not at band. The two volumes, indeed, contain a general statement of the law, quite sufficient in ordinary cases for the purposes of counsel between the delivery of the brief and the trial. One finds, in fact, collected here, in a practical form and sufficient quantity, what one wants. The practitioner who knows what he wants, and the student who wants to know something about a given subject new to him, alike consult Selwyn with perhaps greater advantage than any other single publication. Nevertheless, it is scientific neither in its arrangement nor in the treatment of subjects; but this defect is, in a great measure, counteracted by the simplicity of the alphabetical order originally followed by Mr. Selwyn, and adhered to throughout successive editions. Moreover, a clear table of contents, a complete list of cases cited, and an ample and accurate general index, afford a compensation, to a great extent, for the inconveniences which otherwise might arise from that particular disposition of the matter chosen by the learned author half a century ago.
It is no easy task at any time to re-edit creditably a standard work, especially when it covers so extensive a field as does Selwyn's “ Abridgment of the Law of Nisi Prius.” But, in the interval between the last and the present edition of this book, both the forms and the fabric of our laws have been subjected to such important changes, that Mr. David Power has had thrown upon
him even greater responsibility than is usual under similar circumstances.
Probably some would be inclined to think with us, that it would have been better to have cut out with greater boldness more of the old text than has been done ; but on the other hand, it must be remembered, that a competent editor is really better able to judge of such a question than those who have made use of his work for a few weeks only. We believe, however, that the true principles to be adopted in editing volumes like those of Selwyn, is to treat each subject de novo.
If modern cases have superseded those cited in the original edition, or illustrate better what the editor has to lay down or enforce, then the ancient references and the material founded thereon, should be altogether withdrawn—not even retained in addition to what is new. It is an inconvenience, alike to editor and reader, to be encumbered with what can be dispensed with, and the question which the former should ask himself when called on to use his editorial functions, seems to us to be—“How should I best lay before the practical lawyer what he wants to know? meaning be clearer by retaining the old text, modifying it, or cutting it away, and substituting for it my own material ?" It is, indeed, easier to do this in such a work as Selwyn's than with certain other text-books. Serjeant Stephen's Commentaries would not be the valuable work it is if Blackstone's foundation had been allowed to interfere more with the general structure thau has of late been permitted. Indeed, all recent attempts to re-edit Blackstone's Commentaries have been failures; the last being notoriously the worst.
There is no reason why, with skilful and efficient editing, "Selwyn's Nisi Prius” should not, in name and form, but with many a variation from the first impression, go through twelve more editions. The probability of such an event will be enhanced by the present edition being found as useful by the profession as we think it will be.
A twelvemonth hence we shall be better able to say more authoritatively whether the edition now before us has been edited
as carefully as we hope and believe it is. Use is the only test for such a production. A slip of the pen or of the press here and there among 1500 pages, and which any one may discover by chance, is no disproof of general merit and accuracy; and for our own part we discard our old edition in favour of the new one, with mixed feelings of regret at parting with a valued old friend, and of hope in finding in its successor even a better and trustier support in the hour of forensic strife and danger.
ART. VI.-THE LEGAL EFFECT OF WAR WITH
REFERENCE TO CONTRABAND.
T° mitigate as much as possible the calamities and sufferings
of warfare, and to restrict them to the belligerent powers, nations have deemed it convenient to act upon certain principles which like the common law of this country, have become fixed by usage, confirmed by precedent, and illustrated by the most eminent jurists.
These principles have been recognized in treaties between civilized nations in all ages, the effect being that countries not engaged in war, nor interposing in it, shall not be prejudiced by the feuds of contending nations. “It is certain,” says Vattel, " that, as they have no part in my quarrel, they are under no obligation to renounce their commerce for the sake of avoiding to supply my enemy with the means of carrying on the war against me. Should they affect to refuse selling me a single article, whilst at the same time they take pains to convey an abundant supply to my enemy, with an evident intention to favour him, such partial conduct would exclude them from the neutrality they enjoyed. But if they only continue their customary trade, they do not thereby declare themselves against my interest; they only exercise a right which they are under no obligation of sacrificing to me.” 1
1 It must be a continuance only of such customary trade.-Hall on Captures, 215_233; Lord Erskine's speech, 8th March, 1808; 10 Cob, Parl. Deb., 935.