Page images

of the absence of Index are obvious. One we will give : In reading through Mr. Spens' book we are firmly convinced that we had somewhere therein come upon an assertion that by the law of England, in this respect like the law of Scotland, a man could not contract to exonerate another from the effects of such person's negligence. Armed with the very contrary statement of Blackburn, J., in McCawley v. Furness Ry. Co., L.R. 8 Q.B. 57, we prepared to drag to light the rash statement, and to do what we could in the way of confuting it; but after a tedious search we have had to abandon our intention, though we are still unwilling to admit we have been misled by a mere ignis fatuus, as we might have been compelled, had there been an Index to decide between us. The prefatory note suggests that Parts I. to III. are written for non-legal persons, that Part IV. is for the Legal Profession, and that Part V. is a contribution either to Political Science or to the material with which practical politics deal. This diversity of aims may account for, though in our opinion it certainly does not excuse, the redundancy and repetition of the work before us. Had the book ended at p. 266, and had a few of the additional cases set out in Part IV. been incorporated in its earlier sections, its practical value would have been every bit as great as at present, and

and the sphere of its usefulness more than doubled, since the expense of its production would have been lessened by more than half. Sheriff Spens may but justly appraise the worth of his conjectures as to what should be law; but the purchasers of Messrs. Spens and Younger's book, if they purchase on the faith of the title printed large on its back, will be justly aggrieved when they find that one third of the volume is taken up, not merely with the learned Sheriff's juristic speculations (these we may believe they would cheerfully give up their time to enjoy), but with a re-presentation from Blue Books of very conflicting evidence, not as to the law, but as to how best to change it, the resurrection of Employers' Liabilities Bills now very dead indeed, and, worse still, the reproduction of a circular of the Foreign Office, and the, in most cases, very crude information that it elicited from Her Majesty's representatives abroad.

We have already, criticising the work as a law book, very considerably reduced the practical dimensions of Messrs. Spens and Younger's book. Another complaint we have to make to the same effect. The quotations from Messrs. Roberts and

Wallace's treatise on the same subject are much too frequent. One instance of this is at pp. 244 and 245, where two pages almost are quotations from Messrs. Wallace and Roberts' book, where Mr. Spens' own conclusion is similar, but, to our mind, much better expressed. Generally speaking, we come across an extract from that book every four or five pages. This is hardly fair on Messrs. Spens and Younger's part to themselves. When they choose to take the trouble, they express themselves with at least as much point and precision as the authors from whom they prefer to borrow so copiously; and where they differ from the conclusions set out in the English text book, their reasoning is, in our opinion, in the majority of cases, superior in cogency and point. The only reason, then, apparent, why so much of the English book is incorporated, is that it was too much trouble for Messrs. Spens and Younger to express in their own way what was ready to hand, in what must, to some extent, be a rival work. To the same reason must be referred the very curious way in which they deal with integral portions of their subject. Their work purports to be on “ The law of Employers and Employed, as regards reparation for physical injury." And they must be assumed to have had some intention, when they published, to have informed their readers what the law was. At p. 316, however, we read : “ The various authorities upon the interpretation of Lord Campbell's Act, and the Amending Act will be found collected in Roberts and Wallace, on the Duty and Liability of Employers, 3rd ed., p. 407, et seq." Again, at p. 320 : “ As to the method in which time is to be computed under this section, see Fraser on Master and Servant, 3rd ed.” For the practising lawyers who consult the work, this mode of broadening their acquaintance with authorities may be of the greatest benefit to them intellectually; but its effect on their patience and temper is likely to be the reverse of beneficial. We appeal to the learned authors of this treatise to confess what their feelings would be if, in the stress of practice, they took down a work to establish them on some point pressing for a certain reply, and were to find (supposing the point to be one of marriage law), on referring to the title “ Husband" in the Index, merely “see Wife;” turning to the title “ Wife,' see Marriage ;” and at “Marriage” to be met with “ consult Matrimonial Relation;" and at length, when they hoped to have got home, on turning to the text to be met with “consult Macqueen on Husband and Wife," a work possibly not in

their private library. Treatment not dissimilar from this is what they inflict on every legal reader who consults them as specialists on their speciality. Thus at p. 322, “ The effect of this section, as regards removal of actions in England, is commented on in Roberts and Wallace upon the Duty and Liability of Employers, p. 328 et seq., and the rules made under sub-section 3 will be found set forth in Appendix E, and commented on at p. 335 et seq. of the same work." At p. 294 there is a similar paragraph, but there a reason-possibly not a good one-is given for the reference to another text-writer.

The passages

we have taken give perhaps the worst samples we have found of the fault to which we wish to call attention ; but they are merely a sample. The same fault runs through the whole book after, perhaps, the first fifty pages. This is not book-writing. It is no more than collecting the materials for a book. For which of the classes for whom Messrs. Spens and Younger write their book is this method intended ? Clearly not for the intelligent employer, whose intelligence is very unlikely to hamper itself even with the admirable works of Lord Fraser ; nor yet for the legislators, who are to diet on Part V. For whom this is the treatment meted out a reference to the passages indicated in the Table of Cases against Weblin v. Ballard and Thomas v. Quartermaine may shew. In the Index, we remark, the maxim Volenti non fit injuria is most conspicuous by its absence. Again, in the treatment of the legal principle, Mr. Spens, the lawyer, shews a distaste for what we have heard called “Second Division Law," but Mr. Spens, the philosophic jurist, is of opinion that if a working man is hurt, his master should pay for his being hurt. One passage of the book with reference to this point is delicious. After examining (pp. 97-104, and again at p. 467, such is the distracting character of the book) the decisions in McGee v. Eglinton Iron Co., and the rest, he says, at p. 468 : “ English authority is clearly in favour of the view taken by the First Division. See cases referred to ante, p. 94.” Incidentally we again call attention to the inconvenience of the method adopted by Sheriff Spens of discussing in the first pages of his book and ruminating on the discussion in the last. He continues : “ The state of matters then is that in England the law is that laid down by the First Division. In Scotland there is a conflict of authority. It is desirable in any view that the conflict should

in some way or other be put an end to. But, as previously indicated, I am very distinctly of opinion that, while the weight of legal authority is against the position taken up by the Second Division, their view is certainly that which commends itself to equity.

We may be permitted to express our hope that the learned Sheriff will confine his notions of Equity to his writings, and not allow them to pass into his judgments.

The Ottoman Penal Code. Translated from the French Text by C. G. WALPOLE, M.A., Barrister-at-Law, President of the District Court of Larnaca, Cyprus. W. Clowes and Sons, Lim. 1888.

Mr. Walpole, who is known to our readers by his Rubric of the Common Law, has employed his spare moments in turning to account his Judicial acquaintance with that “very workable piece of Legislation," as he calls it, the Ottoman Penal Code of A.H. 1274. This Code is not an original product of the Ottoman mind, but partly a translation, and partly an adaptation, of the Code Pénal, Napoleon's own adaptation of the Roman Law to the needs of the France of his day. Thus the aspect of the Code itself is about as piebald as is that of the Courts which administer it in Cyprus. It is administered in Courts which were, as Mr. Walpole tells us, “reorganized" in 1883, five years after the commencement of the British Occupation, “by the introduction of English blood into the constitution of the Courts." It is probable that this reorganisation will require something more than the mere introduction, valuable as that may be, of “ English blood," chiefly, it may be presumed, into the Presidential seats of Justice. The Osmanli and the Greek are spoken of as giving their “ assistance" to the Englishman.

There are some striking passages in the Code bearing upon varicus offences which have, unfortunately, for ages been the bane of Eastern Palaces and Courts of Law, viz., Bribery and Perjury.

There is also a chapter on "Acts of violence and ill-treatment committed by public officers against private persons.” It would be curious to hear what an Armenian would have to say on the faithful observance of the provisions of the Code

under that section, and the same may be said of the section dealing with “offences against internal security," which probably has been held not to apply to Kurds and other such “ armed bands.” Of course, there are no Kurds in Cyprus, and the English Judges have probably shewn their Osmanli and Greek colleagues that they intend to put the Law in force against any persons who might have a tendency towards brigandage.

It would be interesting to know whether the British Administrators of the Government of Cyprus have “set apart" any" fortresses” for the reception of persons sentenced to hard labour for life, or to simple “incarceration ” for life. And it would be no less interesting to know, what Mr. Walpole could doubtless have told us, in what manner the “ public exposal of the persons so sentenced is carried out. The words rather remind us of the olden Pillory, and as that has gone out of fashion in England, the newly introduced "English blood” may find itself a little puzzled how to act in this matter. On these and other points, we should have been glad to have been enlightened by Mr. Walpole. His throwing no light upon them seems to suggest, either that the British Administration of Cyprus would not like it to be known here how they carry out such provisions of the Ottoman Code, or that they have felt themselves at a loss how to carry them out, and do not want to own to it. The problem how to administer a country as the tributary of another State which is still necessarily Lord of the Soil, is undoubtedly one of great difficulty, and we ought to know how near it seems to be to a satisfactory solution.

« PreviousContinue »