Page images
PDF
EPUB

proper title, and that of “ Principal ;" and the sporadic manner in which recognition is made of the rank of Sir Travers Twiss. Even Sir Robert Phillimore appears sometimes as “ Dr. Phillimore," while M. Laboulaye and M. St. Marc Girardin are singularly disguised under the names of “ Laboulage,” and “ Girandin.” Of these, and similar slips, we can only say, “dormitat bonus Homerus." It is a more serious fault, we think, that Sir Edward should have printed only the English text of the Declaration of Paris, 1856. The French text is the authentic one, and Sir Travers Twiss pointed out, at a recent meeting of the Law Amendment Society, some important consequences which flow from the language employed in that Text, and which cannot be understood without study of the original. “La Course,” according to Sir Travers, is not what we mean by the word Privateering, but war: fare under letters of marque, granted by a belligerent to any person who would accept them, whether neutral or belligerent. It is evident, therefore, that we must study closely the meaning of the French, and not of the English, Text of this celebrated “ Pilce Diplomatique.”

These and other requirements, which we have felt bound to notice, can easily be supplied in a new edition ; and, in the meanwhile, we have reason to be grateful to Sir Edward Creasy for a volume which by its fertility of illustration, its elegance of diction, and the general soundness of its doctrine, deserves to become a favourite guide to the student, and a Lucerna Juris Gentium."

An Exposition of our new Fudicial System and Civil Procedure as

reconstructed under the Judicature Acts. By W. F. FINLASON. Longmans, Green, & Co. 1877.

The numberless editions of the Judicature Acts which we have from time to time been called upon to notice have been editions, strictly so called, and nothing more. They have given us the original enactments of the legislature, illustrated by so much of the old practice as was available for the elucidation of the new, and arranged according to the editor's best notion of convenience. Mr. Finlason's treatise deals with the entire Judicature as a working unit. “The object of the work," he says, “is to explain the broad principles and main provisions of the Acts, and their practical effect and operation, and especially to exhibit the necessary connection between the different parts of the subject; and, above all, to show how all the principles which govern every part of procedure, down to its most particular details, emanate

from a few general principles—the governing principle of all being the necessity for the adaptation of judicature and procedure to the nature of the jurisdiction to be exercised in different classes of cases; that is, the judicial business to be discharged, or the judicial work to be done. Thus it is that the whole subject turns upon the nature of the jurisdictions to be administered, which necessarily governs the nature of the judicature as the judicial power to be employed—as the nature of the work to be done dictates the agents to be employed." This, it will be observed, is a complete vindication of the Judicature Acts, all the more timely that they are now passing through a storm of criticism, raised chiefly by those who declined to offer their counsel when the Bills were before Parliament.

Nothing would give more satisfaction to the lay public than to be assured on competent authority that the great principle of division of labour has been successfully carried out in the Supreme Judicature of the land. That there was no such principle in the old system; that there were too many workmen in one shop, and too few in another; that their work was not distributed on any business-like principles, but, to a large extent, as the result of historical accidents; and that instead of co-operation, we had opposition, one set of workmen being employed to prevent or undo the work of another-such was the burden of complaint, raised first of all by lawyers who cared about reform, and mournfully repeated by those who knew little or nothing about the matter. On the other hand, the impression now prevailing as to the operation of the Judicature Acts, is that things remain pretty much as they were. The marvellous consolidation of all the old Courts into one, followed by the re-distribution of the business to the old Courts under the old names, is beginning to strike people as a piece of legislative jugglery. It would be highly satisfactory, therefore, to know that the net result after all, is this “necessary adaptation of judicature and procedure to the nature of the jurisdiction,” of which Mr. Finlason speaks. But, when we turn to the chapter in which Mr. Finlason discusses the necessary differences of jurisdictions, we are doomed to disappointment. Mr. Finlason gives us no principles by which we are to distribute our judicial business. In distinguishing between jurisdictions, he appears to hesitate between the nature of the right, and the nature of the remedy, as the deciding test. He is successful in pointing out that special jurisdictions- like Criminal and Divorce jurisdictions--are s.parable from the rest, and must be exercised by separate tribunals But we do not think he is successful in showing that Chancery jurisdiction, as it has been left by the Acts, is a special and separable jurisdiction of this kind. On this point he almost takes up the old position maintained by the opponents of the Judicature Acts, that Law and Equity are essentially different in nature, and must be kept distinct. Mr. Finlason is on the right track in trying to find in the peculiarity of the subject matter a reason for the separation of jurisdictions, but, in the important instance of the Chancery Division, we do not think he has succeeded.

Mr. Finlason thoroughly approves of the settlement of the Appeal question effected by the Act of last Session-a settlement which he evidently looks upon as final. He has no patience with those who say that the highest Appeal Court is not really the House of Lords; such an objection he denounces as both fallacious and futile. Futile it may be in the sense that if we get a good Court, it really matters nothing what it may be called ; but the fallacy, we should have thought, is all on the other side. The objection was only made in answer to those who insisted that the House of Lords ought to remain the Imperial l'ourt of Appeal; and to these it was surely relevant to say, “ After all, what you have got, is not the House of Lords at all.” There may be something in Mr. Finlason's plea, that the name will give the new Court a dignity which it would not otherwise possess in the eyes of the vulgar, and that the dignity will be an inducement to the best lawyers to accept seats on the bench. We should prefer to think, that a seat in the highest tribunal of the Empire, cannot be raised in public or private estimation by a nominal connection with the hereditary branch of the Legislature. But surely Mr. Finlason is going too far, when he asserts that the excessive greatness of the position will be a new guarantee for the fitness of the appointments to high judicial office. And can he really be serious in citing Lord Gordon's appointment as an example ?

We shall not attempt to follow Mr. Finlason through all the questions which are raised and discussed in this vigorous volume. His knowledge and his fairness are alike beyond question, and if his argument generally fails, as we think it does, at the point where it touches the rationale of judicial institutions, it supplies us, at all events, with a rough and ready estimate of the working merits and defects of the last great improvement. The chapter on the history of the subject is, perhaps, the most interesting in the book. Many who have been frightened by the crushing

novelty of the Judicature Acts, will be pleased to learn that all their important provisions have attained quite a venerable age as proposals for reform.

The Statutes, General Orders, and Rules of Court relating to the Practice, Pleading, and Jurisdiction of the Supreme Court of Fudicature, particularly with reference to the Chancery Division and the actions assigned thereto. Fifth Edition. By GEORGE OSBORNE MORGAN, M.P., Q.C., and CHALONER W. CHUTE, of Lincoln's Inn, Barrister-at-Law, late Fellow of Magdalen College, Oxford. Stevens & Sons. 1876.

The fifth edition of Morgan's Chancery Acts and Orders is not merely a new edition of an old and highly-esteemed treatise, but to a considerable extent a new work. The provisions of the Judicature Acts and Rules retaining in force the old forms and methods of procedure, so far as they are not inconsistent with the new practice, have rendered it necessary to perform the difficult and delicate task of disentangling the mass of operative Orders and Regulations from those which have been either expressly or inferentially abolished. This task has been accomplished by the learned authors with great care and discrimination ; and the practitioner will find in the present edition, a lucid and compendious statement of the substance of the Consolidated and other Orders of the Court of Chancery, which, though not expressly incorporated in the new enactments, are, by implication, left untouched by them, placed side by side with the Judicature Acts and Rules of Court. As a minor point, but one which greatly facilitates the convenience of reference, we note that the older Orders and Regulations are distinguished by italics, while the Rules of Court applying to the Divisions of the High Court other than Chancery, are printed in smaller type. The Rules relating exclusively to the Probate and Admiralty Divisions have been omitted altogether, and the volume is judiciously kept within such limits that it can be conveniently carried into Court. In addition to the Judicature Acts and Rules many important Statutes passed since the last edition appeared, such as the Settled Estates Act Amendment Acts, 1874 and .1876, the Partition Act, 1876, and the Appellate Jurisdiction Act, are added to the collection of Statutes forming the first part of the book. The copious notes interspersed amidst the Statutes and Rules are always to the point, and will be found to contain the pith of all the numerous recent cases. We entertain no doubt that this new edition will maintain and enhance the high reputation deservedly gained by the original work.

A Concise Treatise on the Statute Law of the Limitation of

Actions. By HENRY THOMAS BANNING, M.A., of the Inner Temple, Barrister-at-Law. Stevens & Haynes. 1877. Mr. Banning is a new wiiter, and his first book is to be commended as a careful, and, we think, successful attempt to exhibit the whole of the Law relating to the important subject of Limitations in one moderately-sized volume. The subject has, in England at least, been treated as if it consisted of two entirely separate subjects; and so far, therefore, the general policy of the Law has been obscured. It is a healthy feature of recent legal literature, that the scientific is gradually superseding what may be called the forensic arrangement—the arrangement suggested by the casual wants of the practitioner. Mr. Banning's book on Limitations is a study of the operation of the principle throughout the entire domain of the Law. A student, who has mastered the elements of the Law, and is in search of a special subject for detailed study, could not do better than choose Mr. Banning's book. We offer this recommendation the more confidently, as it has the not very common merit of being readable. Mr. Banning has made no attempt to avoid technicalities of expression; indeed, as he tells us in the preface, he has sought to use, as often as possible, the ipsissima verba of the tribunals. But he has produced his effect, mainly, as it appears to us, by the judicious shortness of his chapters, and by the continuous method which runs through them all. Each separable head has a chapter to itself, which one masters with a sense of ease, and each new chapter marks a distinct advance in the line of argument. The result is what must be pronounced an interesting law-book. Here and there one might suspect traces of a grave humour, but the humour is so very grave that it is probably unintentional. Such, for instance, is the case in which Vice-Chancellor Shadwell is solemnly quoted as referring for a legal principle to “ the Holy Scriptures and the decisions of our own Courts of Equity," and citing authorities from St. Matthew's Gospel and the poetry of Ovid. Probably Mr. Banning meant nothing more than to give the ipsissima verba of the learned judge, just as he is probably following a marginal note, when he records in one case that the

« PreviousContinue »