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it is only the ignorance of the German critic which makes him fancy that those writers disclosed anything new, or added materially to the knowledge of those who studied the original sources and authorities, and with which even students of Saxon history would be familiar. In the Codex Diplomaticus again, are to be found instances of appeals to compurgators who were the jurors in Saxon times, and in Palgrave's great work similar instances are given. These instances, indeed, only corroborate the evidence afforded by the Saxon laws, with which Mr. Finlason was long ago familiar, and added nothing to his knowledge on the subject. But as far as they go, it will be seen that they quite confirm his conclusions, and what is to be thought of a critic who represents, probably in utter ignorance of these works, that the author whom they entirely confirm, fell into error, because unacquainted with them. “Enough has been said to show that the editor is a stranger to the German and English law, and that Kemble and Palgrave have written in vain so far as he is concerned.” Substitute for ‘Finlason' the German critic, and the sentence will be truth. It is manifest that the German critic cannot have read these works, or has not understood them, for they entirely support Mr. Finlason's views.' The idea that he had not read works published thirty or forty years ago, is as absurd as that any student of the original sources of Saxon law could derive much new information from them. No one who has read them, or who had any knowledge of English law, could fancy them, as the German critic evidently does, authorities on the history of our law. Incidentally they contain some illustrations of it, but their readers know that their scope is rather the history and antiquities of Saxon times, than the history of English law, and the German critic betrays his own utter ignorance both of English law and of the works to which he refers in supposing them to be connected. Moreover, no student of the history of law would ever dream of taking his authorities from modern works! Here, again, the German critic betrays not only his ignorance, but his incapacity for knowledge.
The German critic, having no real knowledge of the original sources of our law, is obliged to cling closely to Reeves, and yet does not always understand him. Thus, in chapter 11, Mr. Finlason observed in a note :
“ The author heads this and the next two chapters alike, William I to John—thus treating the whole period as one, and mixing up the events of it without distinguishing the important era in the history of our law, which is marked by the reign of Henry II. The second of these two chapters therefore' (i.e. chapter 3 and 4)' is entirely devoted to the law as it was in the reign of Henry II., and therefore it appeared better so to entitle the chapter of that reign, and to entitle the present William I. to Henry II.”
That is, not as entirely or exclusively applicable to the period anterior to Henry II., but principally so; and of the topics treated of in the chapter, there is not one which had not its germ or beginning in time, anterior to that reign. Then coming to chapter 3, the one he had already mentioned as devoted to the rate of the law in the reign of Henry II., Mr. Finlason so entitles it. The German critic quarrels with this as interfering with the integrity of Reeves, but he had evidently not read Reeves, for Reeves himself in effect so describes the scope of this chapter, and he says in this chapter that some point of line between the conquest and the reign of John should be chosen, and the contemporary law of that time stated in all its branches, and then, he says, that:
The new jurisprudence seems not to have been thoroughly established, or at least literally explained, till the reign of Henry II., when we meet with the treatise of Glanville. The scope of that work marks the reign of Henry II., the most favorable period for our purpose
(p. 151.) So that Reeves himself described the scope of the chapter exactly as Mr. Finlason has done.
But there is something better still behind. Take another specimen of the German critic's acumen :
“ The following instance taken at random, illustrates the pedantic narrow-mindedness of the Glossarist (?) Glanville speaks once of avunculus ex parte patris and ex parte matris. That grates against Finlason, who has his school boy's Latin still in mind, as an incorrect expression. Avuncul's
must mean maternal uncle. The proper word for paternal uncle would be patruus. Reeves must have carelessly overlooked this. Did Finlason ever ask himself the origin of the word 'uncle,' which certainly means patruus as well as avunculus ? Ought not the English word to have suggested the fact that the mediaval Latin of England and France, when it is imitating a Roman model, employs avunculus in the sense of patruus ?
To be sure, no doubt, and that was the very reason why, to a modern reader, it was necessary to point it out. In the time of Glanville, the law of succession being still unsettled, the distinction was not drawn between the uncle on the father's side and the mother's, and, therefore, he used the same term for both. And Reeves, a mere copyist, followed him in his error. But the learned editor of Glanville, whose work the German critic, it appears, has never seen! pointed out the error, and Mr. Finlason took care to point it out, too. He imagined that his work would be read by men who had, at all events, a knowledge of the elements of English law, and, therefore, he did not think it necessary to explain what the German critic evidently does not know, that the uncle by the father's side — the patruus — would ordinarily succeed, according to the modern laws of descent, before the avunculus ; rather an important difference between them, of which, however, the German critic evidently is not aware.
The German critic further says: “The Editor should have noticed the late special English works, and the publications of historico-legal sources issued by the Record commission." What the critic knows about them is shown by what follows: "It was especially surprising to us to notice that the year books are made to begin with Edward II., in utter disregard of Horwood's edition of the Year book of Edward I."
The Year books are “made to begin with Edward II.," because the published series does begin with that reign, and there is no mention of “Horwood's edition of the Year books of Edward I.," because there was no such publication. The
book referred to and of which the German critic had heard, was merely a publication of two or three years of that reign, rather curious as specimens, than throwing any additional light on our legal history, and containing nothing not known to students of the Year books of Edward II. The German critic also professes his surprise at finding no mention of Nicholls' edition of Britton, as if it added anything to our knowledge of the work! One more illustration of the German critic's honesty. He complains of 'Finlason' for not using the publications of the Record Commission, of which the two principal and most important are Thorpe's “ Ancient Laws and Institutes" and the Welsh Laws. Yet the first of these works is mentioned and quoted in almost the first page of Mr. Finlason's Edition of Reeves and is largely quoted through the earlier chapters; and the critic, on the other hand, sneers at him for using the Welsh laws, which it plainly appears, the critic was not aware of the publication !
But thus it is with the German critic, from first to last, it is manifest that he has no knowledge of the sources of our law, and that his only idea of knowledge is of that derived at second-hand from mere heresay. It is, therefore, only with mingled sentiments of amusement and scorn that one reads his final judgment of a work of which he is so obviously incompetent to judge, and his criticism of which, disguising as it does utter ignorance of the subject, by the assumption of an air of scorn, is neither more nor less than an audacious piece of literary imposture,
II.-MICHAELMAS TERM AND SITTINGS.
IN pursuing our retrospect of the business and sittings in all
the courts during the last Term and sittings, we desire to say that one of our reasons for it is that there are many cases which are not reported in the law reports, at all events, not in all of them, but of which some notice, however brief, should be taken.
Recommencing with the Court of Appeal in Chancery, we have to notice that before the full court, the Lord Chancellor, and both the Lords Justices, a case arose which illustrated the true doctrine as to contempt of court—that it is a wilful disobedience of the writs or orders of the court, or a direct obstruction of its proceedings. The particular case was of the former class, and the court said there was no wilful breach of the order, and, therefore, no contempt. (Witt v. Corcoran, December 3.) This is the true doctrine : all decided cases, except one or two recent cases in the Queen's Bench, can be reduced to this principle; any dicta which go farther are not law; there is no difference in this respect between superior and inferior courts of record; and indeed, the Court of Queen's Bench itself has since held that an inferior court of record cannot commit for contempt, out of court, where it is not a disobedience to its writs, or actual obstruction of its process.
In a railway case before the full court, a transaction between the auditors and secretary as to cancellation of shares, to release the holder, was held invalid, “as such a transaction could only be supported on the clearest evidence of authority and honesty.” (Re Holyoake Railway Company, December 10.) The inconvenience arising from the Lord Chancellor sitting as a judge of first instance, was illustrated in a case in which the Lord Chancellor, sitting for the Master of the Rolls, refused an injunction, and afterwards the new Master of the Rolls granted it. The party appealed, and the full court