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ART. V.—Selwyn’s Abridgment of the Law of Nisi Prius. Twelfth Edition ; with considerable Alterations and Additions. By DAVID POWER, Esq, QC. London: Stevens & Norton, 1859.
“ ELWYN’S Nisi P'rius” is a curious example of illogical
abbreviation of titles in a book. Selwyn’s “La/w of N isi 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 N isi 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. VVolferstan 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 hand. The two volumes, indeed, contain a general statement of the law, quite sufiicient 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 sufiicient 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 \vants to know? Will my 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 than 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 eflicient 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 l>efore_us has been edited as carefullylas 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 W'AR WITH REFERENCE TO CONTRABAND.
O 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. 7 i 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
1 It must be a continuance only of such oustomary trade.-—Hall on Captures, 215-233 ; Lord Erskine’s speech, 8th March, 1808; 10 Cob. Parl. Deb., 935.
It is an inevitable consequence of the existence of war, that discussions should arise as to the commercial rights of nations not embroiled in the quarrel. The result has been sometimes to cripple, but frequently to favour, their commerce; and the belligerents themselves have often found a mutual benefit in the exchange of their own produce, through the instrumentality of neutral carriers. In many of those instances it became the duty and the necessity of the neutral state to assert with decision the commercial liberties of its subjects, the belligerents being infiuenced by consideration of the power which might be thrown into either scale by such state, when they might have been disposed to ignore the advantages of unrestricted commerce. But though these motives operated to introduce the practice, so varied and complicated were the interests, and so changeable the course of proceeding, that some unvarying tribunal became necessary; and for this purpose the opinions of a few wise men were erected into a code of international law, and something was gained towards permanency and justice by the admission of those authorities. H
But the commerce of neutral with belligerent states, to be entitled to immunity, must be legal. “ Whenever," says Vattel (Chitt. Ed., 336), “I am at war with a nation, both my safety and welfare prompt me to deprive her, as far as possible, of every thing which may enable her to resist or injure me. In this instance the law of necessity exerts its full force. If that law warrants me, on occasion, to seize what belongs to other people, will it not likewise warrant me to intercept every thing belonging to war which neutral nations are carrying to my enemy? Even if I should, by taking such measures, render all those neutral nations my enemies, I had better run that hazard, than sufier him who is actually at war with me thus freely to receive supplies and collect additional strength to oppose me.”
It is therefore very proper, and perfectly conformable to the
It has even been holden that a British-born subject, while domiciled in a
neutral country, may legally trade from that country with a state at war with this country, Bell v. Reid, 1 M. & S., 727.