Page images
PDF
EPUB

of leaseholds in the City discovered shortly after he had advanced his money that the mortgaged property was subject to heavy charges of this nature.

There are many other statements in the book to which we could take exception, but nevertheless we consider that it will be useful to that large class of practitioners, living for the most part in the country, who cannot afford to purchase and have not access to a law library. While we do not consider that the book will be of much use in fighting cases, we think that it will be a fairly useful guide to advising on title in non-contentious cases. We call particular attention to the tables of Stamp Duties, which extend backwards as far as the year 1815. Tables of this nature ought always to be before a conveyancer when he advises on title, as there are but few, if any, who can safely trust to their memories for the details of the Stamp Acts.

H. W. E.

Declaration of War: A survey of the position of Belligerents and Neutrals, with relative considerations of shipping and marine insurance during War. By DOUGLAS OWEN. London: Stevens & Sons, Lim. 8vo. xxiv and 488 pp.

ONE is not prepossessed in favour of a law-book the title of which is at once sensational and misdescriptive. We opened Mr. Owen's treatise upon 'Declaration of War,' expecting to find in it a discussion of the questions debated early in the century by Mr. Ward, and recently by Col. Maurice, as to the legitimacy of a war commenced without formal notice. The book is in reality devoted to a minute consideration of the effects produced by the incidents of war upon Commercial Transactions. These effects, which are of the utmost importance, are no doubt dealt with in a somewhat fragmentary manner in the classical works of Arnould and Maclachlan upon the law of marine insurance and of shipping. It would not be undesirable to extricate the special subject of maritime law in time of war from maritime law generally, and to exhibit it in an easily intelligible form for the information of shipowners, shippers, and underwriters. This seems to be the object which Mr. Owen has proposed to himself, but he can hardly be congratulated upon his success in attaining it. He sees that the subject may be approached from the side of international law, or from the side of maritime contracts, and that its contents may be classified accordingly. Instead of selecting one or other of the two methods he has unfortunately endeavoured to combine them, with a resulting confusion which must be seen to be believed. We shall fall back upon our Tudor's Leading Cases, our Arnould, and our Maclachlan.

The Law of Torts. By J. F. CLERK and W. H. R. LINDSELL. London: Sweet & Maxwell, Limited. 1889. La. 8vo. lv and 675 pp. Principles of the Law of Negligence. By THOMAS BEVEN. London: Stevens & Haynes. 1889. La. 8vo. lix and 1252 pp.

'A TORT,' say the authors at the outset of the former of these works, 'may be described as a wrong independent of contract, for which the appropriate remedy is a common-law action.' This is a fair, though not quite accurate, description in brief, of the scope of the work; but it should have been pointed out that this use of the word 'tort' is arbitrary, and only defensible as convenient to mark a class of miscellaneous subjects, for which it would be difficult to find another term. The word 'tort' has long ceased

[blocks in formation]

to have any great practical importance; nor, at the time when it indicated an important distinction, would it have been possible to define it accurately. It was precisely because to have used the word 'tort' would have been inaccurate and misleading, that the authors of the Common Law Procedure Act of 1852 employed the expression wrongs independent of contract' for one of the divisions of their schedule. They treated the word 'tort' as dead, and tried to give it decent burial. It continued, however, to enjoy a lingering vitality in questions relating to the survival of actions, and costs. The remains were dug up by the authors of the County Courts Act 1867 (s. 33), and the word has been lately revived in an altered sense, for purposes of classification. The author of a text-book is not, however, yet privileged to define after the style of a parliamentary draftsman; and if he does, he should follow that style so far as to preface his definition by some such words as 'For the purposes of this book.'

Accepting however the definition as a fair description of the scope of the work, the next thing to be looked at is the principle of arrangement. On page 3 of the introduction, the authors appear to adopt the tripartite division: (1) right of personal liberty and security, (2) right of reputation, and (3) right of property. But this is not pursued; and on page 5 we have the division of torts into those in which the party is liable (1) simply by an act or omission itself amounting to an infringement of duty, (2) where the conduct of the wrong-doer is unlawful only by reason of his failure to exercise proper care and skill, (3) where there must be some element of wilful wrong-doing. This does not appear an arrangement conducive to clearness. But the carrying out of even this arrangement is postponed—without explanation to seven chapters (II-VIII) which apparently are here inserted as belonging to the subject of torts generally. And of this matter a great part of Chapter II on 'Parties,' and the whole of Chapter V, Notice of Action,' is mere procedure, which ought not to encumber a part of the work dealing with general principles.

[ocr errors]

Mr. Beven's book, 'Principles of the Law of Negligence,' is based on a different principle of classification. It embraces a field which of late years has greatly and rapidly increased in extent and multitude of sub-divisions ; and the scope of the work is determined by popular and practical, rather than by scientific or technical considerations. The author is, however, careful at the outset to analyse the term 'negligence,' and the various definitions which have been given of it. He then discusses 'degrees of Negligence'; and shows that the three degrees of the post-Roman civilians have been dropped for all practical purposes. To the distinction of the Roman lawyers themselves between culpa lata and culpa levis, he attaches great practical importance; and adopts the view, which seems well founded, that it indicates a difference of 'kind' rather than 'degree.' Culpa lata non intelligere quod omnes intelligunt:-Culpa levis (lack of the diligence of the good business man in his business). He then considers each of these as applying (a) In the case of rights arising out of contract; (b) In the case of wrongs independent of contract. Having done this, he deals with the limits of liability,' including a discussion of cases where the sequence of causes leading from the act to the result complained of, has to be carefully analysed. Here is discussed at considerable, but not too great length, the class of cases of which Heaven v. Pender (11 Q. B. D. 503) is the latest, and perhaps the most important in the English Courts. At the same time are set forth some of the latest expressions of opinion in America, where Heaven v. Pender has been much discussed, and some eulogiums have been pronounced upon the judgment of Brett M.R., which stated the duty of

every person to other persons generally, in respect of care, more broadly than the other members of the Court were prepared to do.

The general arrangement of the work divides the subject into three books: the first is entitled 'General Relations,' and besides the general subjects already mentioned, discusses 'onus of proof,'' contributory negligence,'' corporations and public bodies,' and the liability of a master for and to his servant.' The second book is occupied with Special relations arising out of Contract.' And the third with 'Special relations not arising out of Contract.' This arrangement seems to contrast favourably with that of Messrs. Clerk and Lindsell's book.

In regard to the substance of the two books, it is impossible to resist the conclusion that a clear and intelligible principle of arrangement has much to do with perspicuity in the discussion of principles and statement of results in detail. And in the solution of a difficult question belonging to the ground common to the two books, we should expect the greater assistance from Mr. Beven's. Both books, however, contain evidence of much serious work, and ought to receive a fair trial at the hands of the profession.

The Constitution of Canada. University Press. 1889. Federal Government in Canada. kins University Studies in Seventh Series, X, XI, XII. THESE books are a sign of the times. When an English author publishes for Englishmen an elaborate account of the Canadian institution, and a Canadian author contributes to an American series of works on historical and political science a masterly disquisition on Federal Government in Canada, we may safely conclude that the whole English people on both sides the Atlantic are interested in constitutional problems. In England at any rate the circumstances of the day have aroused a desire for knowledge about federalism which stands in marked contrast with the apathy with which Englishmen only a few years ago regarded all questions of a merely constitutional character.

By J. E. C. MUNRO. Cambridge :
8vo. xxxvi and 356 pp.

By JOHN G. BOURINOT. John Hop-
Historical and Political Science.
Baltimore. 1889. 8vo. 172 pp.

He

Oddly enough, it is the Canadian, rather than the English writer, who meets the wants of the English public. Professor Munro's 'Constitution of Canada' is, as may be gathered from his preface, modelled upon Sir William Anson's admirable work on the Law and Custom of the Constitution. gives much such an account of Canadian institutions as Anson has given us of English constitutional law and practice, and we can well conceive that the professor's statement of, for example, the constitution and customs of the Dominion House of Commons, of the method of legislation adopted by the Dominion Parliament, and the like, may be most useful to Canadian politicians, and be as serviceable to them as May's 'Parliamentary Practice' is to any one who takes part in English politics. We regret however that a professor of law should have countenanced the delusion that the Crown is not a member of the Dominion Parliament (see Munro, Constitution of Canada, p. 110); the error might have been avoided by following the accurate terminology of the British North America Act, 1867, s. 17. But for English readers Professor Munro's book is too full of details, and too much wanting in any general view of the whole subject with which it deals. Bourinot's Federal Government,' on the other hand, gives the English student exactly

what he does not find in the treatise of the English professor. For Mr. Bourinot's four lectures are each of them devoted to giving a general view of a different side of Canadian federalism. The first provides-what Englishmen much need an historical outline of the growth of the Dominion; the second explains the general features of the federal system; the third with the government and the parliament of the federal State; the fourth with the provincial governments and legislatures. Whoever wishes to form a fair estimate of the value of our author's work will do well to study with care the second lecture. It is an admirable specimen of good workmanship and may be read with great profit as well by those who overrate, as by those who under-estimate, the practical difficulties of establishing a good working federal system.

Any candid student of Bourinot's pages must be led towards two or three conclusions of no small importance. The first is that the experiment of binding together all the provinces of the Canadian Dominion by a federal tie has been, if not a brilliant, yet, considering the difficulties of the case, a decided success. The second conclusion, which is now placed past a doubt, is that the most careful foresight in drawing the line which divides the powers of the Dominion, or in other words of the central government, from the powers of the States, or (as in Canada they are called) the Provinces, cannot by possibility prevent the rise of constant disputes or questions as to the proper limits of federal authority on the one hand, and of State rights on the other. Federalism in Canada, as elsewhere, almost of necessity involves the submission of political controversies to the arbitrament of the law courts. No nation which has not a supreme respect for law can without great difficulty keep a federal government in working order. The third conclusion to which our student will, we suspect, arrive is, that the existence of the Imperial Parliament, or, in other words, the connection with England, has for the moment at least facilitated the development of the federal system in Canada. The English Privy Council has provided the Dominion with a perfectly impartial Supreme Court. The authority of the British Crown has probably given some additional weight and prestige to the government of the Dominion, or, in other words, to the central power, and has prevented the occurrence of disputes which might distract, or even rend asunder, the Confederacy. But the connection with England which has fostered the rise, may, it is possible, retard the development of Canadian federalism. In every federal state the citizens are expected to cherish at once a feeling of state loyalty, and a feeling of federal loyalty. When a Confederacy forms part of an Empire a citizen should cherish also a sentiment of Imperial loyalty. The ideal citizen of Ontario must be in spirit as well as in law an Ontarian, a Canadian, and a British subject. Whether the sentiments proper to the three positions can permanently be kept in force is a matter awaiting the decision of the future. For the present the best course for intelligent Englishmen is to collect from treatises such as Mr. Bourinot's all the ascertainable facts as to the new kind of federalism which exists, and more or less flourishes, in Canada.

Histoire des Institutions politiques et administratives de la France. Par PAUL VIOLLET. Tome premier. Période Gauloise, Période GalloRomaine, Période Franque. Paris: Larose et Forcel. 1890. 8vo. viii and 468 pp.

THIS volume provides an excellent introduction to the study of that process of change which, in the course of eight or nine centuries, may be

roughly said to have found European civilisation imperial, and to have left. it feudal. If one were to call this change a development, the phrase would perhaps involve the notion of paternity to an extent hardly justifiable, and certainly disputed with force as well as with vehemence. On the other hand, to imagine that the introduction of the feudal system was an exception to the general rule that 'natura nihil facit per saltum,' would be to disregard history. What was this feudal system? We talk of it, we refer to it the origin of many modern institutions, but what was it? Let any one sit down to describe it in a series of definite propositions; let him even limit himself to a dozen characteristics; he will find some of his characteristics wanting in one or more countries where the system as a whole admittedly prevailed. Let him take a particular date. M. Viollet's opinion is that the feudal system has established itself about A.D. 1000, at any rate in France. What can be more characteristic of the feudal system, as we conceive it, than the power of the lord over the marriage of his vassal? But we have an edict of Clotaire II, of the early part of the seventh century, purporting to restrain the royal power in this respect. Hominium,' homage, the tie which binds the great man and his vassal to each other, is surely feudal? But M. Viollet considers it as directly descended from the Merovingian commendatio,' by which a man became the 'vassus' of a 'senior.'

After the death of Louis the Pious in A.D. 840, for a period of about 200 years, the weakness of the Crown and the power of the nobles produced a state of things extremely unfavourable to civilisation and settled society. The central authority was paralysed, the nobles fortified their castles, carried on private wars among themselves, and ground down the mass of the population. Arbitrary power cared little for law. The weak sought the protection of the strong man in return for services as his retainers. The church fell under the government of Theodoras and Marozias. At the end of this period things settle down. What is it that we see? The feudal system, we say. It is the cooling down of the civilised world. We must take a metaphor from geology. Some institutions are in a metamorphic state, but the lines of stratification are not wholly obliterated; some have survived fairly well, but others have been fused past recognition, and a new thing is in the place they once occupied. Such of the old institutions as served the turn of those turbulent seigniors have been fostered and amplified commendatio' is represented by homagium.' But it is the unrestrained power of the nobles which crystallises into 'la haute justice.' Just as a man may trace the colour of his eyes to a paternal ancestor, and the shape of his mouth to one on his mother's side, and his bad temper to a stepmother at home, so may it be with the feudal system. It would be a mistake to define feudalism by excluding everything which existed previously; it would be equally wrong to date feudalism from the first appearance of a feudal characteristic.

[ocr errors]

It is manifest therefore that the feudal system cannot be understood without a study of the previous history of society. The present volume deals in a comprehensive way with this subject, and though stopping short at the appearance of the feudal system, the author manages to bring within a very considerable compass an immense amount of information, with plentiful references to the authorities. He begins with the Gauls: he describes the Roman administration of Gaul from Cæsar's time; the gradual infusion of Germans previous to Clovis, and the effect of this upon the Roman institutions on the one hand, and upon the Germans themselves on the other. He considers the first Salic Law to date from the fifth century,

« PreviousContinue »