of conveyancers to attach the effect of a gift by purchase to a destination to 'heirs' of a special class. It remained however a settled principle, even in Scotch law, that a gift to 'heirs whatsoever' could not be protected by the fetters of an entail; and it is now equally well settled that the same applies to a gift to heirs,' unless the context makes it necessary to construe the word as confined to a special class of heirs. Now, if it were allowed to borrow the word 'purchase' from the English law, the reason of all this might be summed up briefly as follows:-"Heirs" cannot, except by a necessity of the context, be construed as a word of purchase;'-a proposition which an English lawyer would think a truism; though so great an authority in Scotch Conveyancing as the late Lord Curriehill, never fully assented to the principle as applied to Scotch Law in the cases above referred to. R. C.

und VerSecond

System des Handelsrechts mit Einschluss des Wechsel-, Seesicherungsrechts im Grundriss. Von L. GOLDSCHMIDT. Edition. Stuttgart: F. Enke. 1889. 8vo. 248 pp. THE first edition of this work gave a ground-plan of the arrangement of the subject with references to the literature belonging to each separate head, the second adds detailed notes on some of the matters referred to. The book is primarily intended as a help to University teachers, but it will be found most valuable for several other purposes. For English readers its chief use will consist in the elaborate bibliographical information it contains. The number of monographs published in Germany either separately or in periodicals on almost every branch of mercantile law is so great that the student's path becomes blocked up if he is left to his own devices, and a guidance so discriminating and so reliable in every way as that of Professor Goldschmidt is therefore most welcome. The subjects referred to are very numerous, the book dealing with mercantile law in its widest sense, and including many subjects of international interest, such as the law of bills of exchange, maritime law, insurance law, banking law, the law of carriers, the law relating to publishers, the law relating to money and to money securities, &c., &c. The literature of other countries as well as that of Germany is given with great completeness. The references to English and American publications are on the whole very exhaustive, and show great care and discrimination. The only serious omission we have been able to discover is the absence of the works of Lord Justice Lindley and of Mr. Buckley from the list of books on English company law, and we may also point out that a work on 'les sociétés anglaises limited' does not profess to deal with the law of partnership. But these are solitary exceptions. Otherwise not only the right books, but also the latest editions, are quoted, and we may well assume that the same care and knowledge has been applied in the case of the literature of other countries. It is almost needless to add that a book coming from a man so distinguished as a historical scholar as Professor Goldschmidt contains ample references to mediaeval mercantile law, and this fact may also attract English students.

E. S.

Überblick über die Geschichte der französischen, normannischen und englischen Rechtsquellen. Von HEINRICH BRUNNER. Leipzig: Duncker & Humblot. 1889.

IN revising for the new edition of Holtzendorff's Encyklopädie his wellknown sketch of French, Norman, and English legal history, Dr. Brunner,

as might be expected of him, has shown that he does not overlook new books or new discoveries. On the present occasion he has been able to use some of the as yet unpublished results of Dr. Liebermann's researches among our oldest law books. The most important item of news is some information about the lost law book of the twelfth century, of which tidings were first published in that odd jumble of notes known as 'Cooper on the Public Records'-we call it an odd jumble, for whether a particular note comes from Cooper himself, or from Palgrave, or from Hardy, the reader can never discover. It was known that the missing book consisted of four parts, and Liebermann proposes to call it the Quadripartitus. The first part, it now appears, consisted of a Latin version of the Anglo-Saxon laws, and the third part (we should hardly have expected this) of the Ordo Judiciorum which became known as 'Ulpianus de edendo.' Of the fourth book, which treated de furto et partibus ejus,' no portion has yet been found. The third book seems to have been a collection of state papers of Henry I's day. Certainly the little that has as yet been revealed will make us wish for

more.

One other point in Dr. Brunner's sketch well worth the notice of Englishmen is the panegyric-for we can call it nothing else that he pronounces on Blackstone's work, a deliberate and carefully weighed judgment, which none the less is a panegyric. On the other hand, the half-line given to 'die naturrechtlichen Theorien Benthams und Austins' may strike some of us as strange. In a recent biography of Austin complaint was made that 'his name is not found in such a work as Holtzendorff's Rechts-Lexicon, which contains notices of almost every obscure medieval jurist; and German jurists still confound law proper with morality, as if he had never written.' Whether this complaint has come to Dr. Brunner's ears we cannot say; but he has given his answer to it in a not too respectful half-line which couples Austin's name with Naturrecht. It is not we Germans, he seems to reply, who are in danger of confounding positive law with morality, but some of you Englishmen who seem to imagine that there can be a Jurisprudence' which is not a study of any particular system or systems of law. Such a Jurisprudence,' call it by what name you will, is and must be essentially Naturrecht, while in Austin's case it emphatically protests that it is Lot Recht at all. It is indeed the ghost of old Natural Law 'sitting crowned upon the ruins thereof.'

F. W. M.

Year Books of the reign of Edward the Third. Years XIV and XV. Edited and Translated by L. O. PIKE. (Rolls Series.) 1889. La. 8vo. lxxvi and 424 pp.

FOR the manner in which Mr. Pike is accomplishing his important task we have still nothing but praise. Every volume that he publishes seems more complete and more useful than its predecessors. On the present occasion he gives us a very interesting Introduction dealing with some of the legal aspects of the great crisis of 1340-1. We should hardly have gone the length of saying that the striking events of those years had 'not attracted the special notice of historians,' for the Bishop of Oxford has given a good many pages to them; but Mr. Pike's intimate acquaintance with the records of this time enables him to describe fully and clearly the legal machinery that Edward III employed to effect his questionable or worse than questionable ends. He is led to speak of this matter by a very curious report of the

trial of Richard Willoughby, one of the justices whom the king had dismissed and arrested. He was tried before a special commission' (to use a now familiar term), and the commissioners, it seems, were appointed not 'to inquire of, hear and determine' in the ordinary way, but to arraign, hear and determine.' Without any indictment Willoughby was arraigned and accused of selling the laws as if they had been oxen or cows. In vain he protested that there was no indictment and no suit; it was answered to him that the king was informed of his misdoings by the clamour of the people. After a vain struggle with the presiding commissioner-the famous Sir Robert Parning-he made his submission; and afterwards the king caused him to be led from one county to another,' &c. The whole scene gives us a curious picture of the worst side of medieval justice. It was ill pleading against the king; the king's justices behaved and were expected to behave as his very obedient servants. This trial induces Mr. Pike to speak at some length and with good effect about the various forms of judicial commissions. One small point is worth notice: the king, wishing to humble the city of London, sent justices in eyre to sit at the Tower, and, as Mr. Pike says, The Eyre was an extremely disagreeable engine of punishment to any person or corporation holding any sort of franchise;' we may add that it was fast becoming an antiquated engine. One day's session of the justices was enough to bring the city to its knees. What Mr. Pike says on this point is well borne out by Adam of Murimuth, of whose chronicle Dr. Maunde Thompson has just given us a new edition. The eyre once so potent for good seems to have become little better than an instrument of oppression, and therefore Mr. Pike does well to insist on the great difference that there was between a commission for an iter' and the more modern and less comprehensive commissions. He carries his story down to Edward's repudiation, or revocation, or whatever we please to call it, of the statute of 1341. He lays stress on the protest of the ministers and judges which served as an apology for this high-handed act; whether he would agree with Dr. Stubbs, who is not wont to use hard words, that the king's conduct was 'a piece of atrocious duplicity,' he does not tell us, but of course the assertion of the justices and other members of the council that they were entitled or bound to disregard statutes made contrary to the laws and usages of the realm, is very memorable, even if it was merely a cloak for lawlessness. Altogether the Introduction is an excellent piece of work. The one cause for a critical murmur that we find in it is Mr. Pike's determined prosecution of his feud against the author of the Dialogus. On this occasion he singles out for attack the most famous passage in the book, that which describes the fusion of Normans and English. Surely there is a time for all things, and Mr. Pike, if he wishes to convert the world from the doctrines made popular, if not orthodox, by Stubbs and Freeman, must argue more elaborately than can be done in a foot-note.

In his text we will venture one small conjectural amendment-just by way of showing that we have looked for faults in vain. In the translation he gives us the following:-Note- Detinue of chattels. The plaintiff recovered damages and not the principal, because all things may be resolved into damages, as an equivalent' (p. 30). The words to be translated are, 'pur ce qe tout court en damage al contra.' Is not as an equivalent' a somewhat forced translation of al contra'? May not the last words be 'al' [i. e. alii] contra,' and their meaning 'but others said that this was not so'?

Histoire des Institutions politiques de l'ancienne France. L'Alleu et le domaine rural pendant l'époque mérovingienne. Par FUSTEL DE COULANGES. Paris: Hachette. 1889. 8vo. vii and 466 pp. THIS is in every way a very remarkable book, and makes us more and more regret the death of its author. As Newton said of Cotes, 'If he had lived, we should have known something.' In the present volume M. Fustel de Coulanges traces the continuity of the rural organisation of the Roman estates through the Merovingian and Carolingian times until they become, in France at least, village communes which lasted, in fact, down to modern times. The Roman word for an estate was 'fundus,' 'praedium,' or 'ager.' 'Villa' meant first the mansion-house, then the whole estate. Cortis' was used in the fifth century in the same way. Each estate had a name, generally formed upon the name of the original Roman proprietor, and many of these names remain to the present day. For village,' as distinct from 'estate,' there is no Roman word, nor any French word till the thirteenth or fourteenth century; the village was only the collection of the dwellings of the serfs of the estate. The Roman system of cultivation was by slaves; and this gradually became cultivation by serfs. Serfdom slowly developed from slavery. The slave's 'peculium' would often include a bit of land, which is the origin of 'servile' tenures. In the third century there was a revision of the land-tax, and the serfs were taxed, which practically improved their tenure. There were also large numbers of freedmen, who in regard to the services due to their master were scarcely better than slaves, and were probably his tenants. Such a free tenant was called 'colonus,' and was a very small tenant indeed. He was succeeded by another 'colonus,' who was attached to the soil; but he was not a true serf, much less a slave, and possessed property. His duties were regulated by the practice of the estate, 'consuetudo praedii.' Part of his services consisted of labour on the lord's land, a relic of his former condition of slave.

Under the Franks the land remained distributed in 'villae,' which means 'estates,' not 'villages': the villagers were all 'coloni,' or serfs. The author entirely rejects the theory of a formal distribution of lands among the Franks; and, as for the word 'alleu,' he shows by many quotations that it means simply 'heritage,' as opposed to what we should call 'purchase.' It is mere conjecture that the word is Germanic; it is not found among the Visigoths, the Burgundians, the Lombards, or the Saxons. Even the word 'sors' simply means landed property, 'possessio.'

The influence of the Church tended to the enfranchisement of slaves, but did not do much for the inferior freedmen; and as enfranchisement might be granted subject to a great variety of conditions, the Church was satisfied, especially on its own estates, by an enfranchisement which practically left the cultivator where he was before. All these different classes of freedmen, serfs, and slaves, became confounded together under the general word 'villani.' All had a 'dominus,' and were designated as 'homines potestatis,' an expression which under the form of 'homme de pôté' lasted throughout the middle ages. The estate was 'unum quid' and required administration. The Roman villicus' and 'actor' we find down to the tenth century. Later the word is 'major' or 'maire,' which lasts through the middle ages. Large estates have also a 'judex.' By the nature of the case the only authority was that of the owner. He had been forbidden by imperial laws and councils to inflict death, but in other cases he was absolute and unappealable.

The author cannot see any trace among the Franks of community of property in land, or of annual partition. They had hereditary succession,

but not primogeniture; and if land descended to co-heirs, actual division very seldom took place. There is no trace of the village collectively holding land or of a village community before the tenth century. There were, however, some 'vici' which were not private property. As to the word 'mark,' its earliest use is in Ulfila's Gospels, where it means simply 'boundary;' then in the seventh and eighth centuries it came to mean the domain itself, or an aggregate of 'villae' in one ownership. But from the middle of the ninth century its meaning changes; it is applied to a forest bordering upon two or three estates, and used in common by the owners; and by the twelfth century it almost always means a part enjoyed in common by the tenantry.

From this account of the book it will easily be seen on how many interesting, even burning, questions it touches. Mr. Seebohm will find support for his theory of the servile origin of the agricultural population. However strongly M. de Coulanges' description of a Roman estate may correspond with that of an English manor, it must be observed that from beginning to end of the book the English manor is not once mentioned. When we add that this is not a work of mere speculation like 'La Cité Antique,' but that the author's arguments are supported by copious citations from the original authorities, after the best French historical method, we have said enough to show that the book is one which may perhaps be controverted, but cannot be ignored.

The Bishop of Lincoln's Case. Report of the proceedings in the Court of the Archbishop of Canterbury on the objections to the jurisdiction. With an Appendix containing the pleadings and a selection from the authorities cited. By E. S. RoscOE. London: W. Clowes & Sons, Lim. 1889. 8vo. ix and 90 pp.

THIS, so far as the Report of the proceedings is concerned, is a reprint from the Law Reports, and contains a verbatim report of the judgment. To this is added a selection from the texts cited, which is a great convenience to those who cannot readily lay their hands on the books themselves. Enough is given to show the points of the argument, especially as regards the absurd contentions put forward on the Bishop's behalf as to the jurisdiction of the comprovincials or of Convocation. These contentions are dealt with in a very masterly manner, obviously due to a lay, and not to a clerical mind, if it be allowable to suppose that His Grace retains both. Of course no lawyer, and probably no historian, ever had any real doubt on the matter; but still, to make such mincemeat of the wild theories propounded is a really great performance. There is one thing lacking in Mr. Roscoe's book; it was published a little too early. If he had delayed it a few months, he might have added the protests which are being signed among the clergy against the Archbishop's decision. Unreasoned and unreasoning, but portentously solemn, and absolutely ignoring the arguments and evidences, these funny documents would have made a splendid foil to the clear-cut common sense of the Primate's judgment.

A Treatise on the Law of Contracts and upon the defences to actions thereon. By JOSEPH CHITTY, jun. The Twelfth Edition by J. M. LELY and NEVILL GEARY. London: Sweet & Maxwell, 1890. La. 8vo. cxxxii and 950 pp.

THIS is a good book for practical purposes, because by means of a good index and a first-rate table of cases the practitioner can very readily turn to