Page images

that ius civile was a narrow and technical expression in all contexts. But 'the right of the civitas ’ is a sufficiently appropriate title for a collection of ordinances sacred and profane. That ius and fas, although often contrasted as subdivisions of all law, were not mutually exclusive, is shown by the language of the Roman draftsman :-Si quid sacri sancti est quod non iure sit rogatum. If one wished to comprehend both types of national law, it is difficult to see what other expression than ius civile could be used. The comprehensive character of the expression, in its application to the Papirian compilation, may be a sign of its antiquity. It may have been found, not invented, by Granius Flaccus.

The study of the ius Papirianum bere presented to us deals wholly with its structure and its literary phases. These are interesting and important points; but they must always rank as secondary, in historical and legal importance, to the questions presented by the actual contents of the compilation that have come down to us. It is through a review of these contents that we can predicate an authenticity for the ordinances which is independent of any author or any redactor. The antiquity of many of these pontifical rules and observances is beyond dispute ; and their very strangeness and remoteness suggest the probability of an early redaction, if not of an early Papirius.

The Law of Mortmain. By THOMAS BOUCHIER-CHILcott, London : Stevens & Haynes. 1905. 8vo.


xx and 234 pp. This is a thoroughly practical treatise, containing the text of the Mortmain and Charitable Uses Acts, 1888, 1891 and 1892, with explanatory notes. For the benefit of students there is an introductory chapter headed' Evolution of Mortmain,' which renders the book as suitable for them as for the practitioner, We should not have thought that the case law on the subject of gifts savouring of realty was obsolete, as there may still be gifts of that character to charities to take effect after a life estate contained in a will made before August 5, 1891, but we are not prepared to challenge the learned author's view that they may be disregarded. At any rate it is a topic the importance of which is diminishing daily. We regret to notice occasional signs of haste or carelessness, but in view of the general excellence of the book, we forbear to specify them. Trade Unions and the Law. By DOUGLAS FALCONER PENNANT.

London : Stevens & Sons, Lim. xxxi and 146 pp. (58. net.) This is a small and cheap, but new and valuable addition to the works on the law as to trade unions - which, as the author remarks, is a branch of the law in very vigorous growth at the present time. The introduction contains a lucid history of the growth of trade unions and the laws from time to time relating to them. Chap. I deals with membership, and Chaps. II to IV with unions and workmen, unions and employers, and unions and the public. The three remaining chapters relate to the criminal law applicable to unions, their property, and their registration. Whether this is the best division may be open to question, but the question is one on which opinions might well differ.


We have also received :

The Law of Carriage by Railway. By HENRY W. DISNEY. London: Stevens & Sons, Lim. 1905. Demy 8vo. xvi and 232 pp. (78. 60.)This little book is compiled from lectures delivered by the author at the


London School of Economics, to an audience composed mainly of railway

It modestly hopes that it will be of assistance to other persons engaged in a similar occupation, and we have no doubt that it will. The carriage of goods, animals and passengers is discussed clearly, succinctly, and with accuracy.

Constitutional Law of England. By EDWARD WAVELL RIDGES. London: Stevens & Sons, Lim. 1905. 8vo. xxxii and 459 pp. (128. 60.)-This book is described by the author as a compilation.

a compilation. It would be more useful if the sources from which it was compiled were more fully and specifically acknowledged.

Courts and Procedure in England and in New Jersey. By CHARLES H. HARTSHORNE. Newark, N. J.: Soney & Sage. 1905. 8vo. xiii and 233 pp.— New Jersey still has separate courts of law and equity with substantially the old procedure. Mr. Hartshorne explains the improvements effected in England by the Judicature Acts and holds them up for imitation. So far as we have observed, his statements are quite accurate.

I presuppositi filosofici della nozione del diritto. By GIORGIO DEL VECCHIO. Bologna: Nicola Zanichelli. 1905. La. 8vo.

192 pp.—The learned author holds a chair of the philosophy of law at Ferrara. This is an elaborate book of critical prolegomena, showing wide acquaintance with Italian and German literature, much less with French, very little with English, and none with American. Negatively the author holds that empirical and historical methods cannot of themselves produce philosophical results : quod verum. His positive doctrine is not yet disclosed, or we have failed to discover it.

Die ökonomische Entwicklung Europas . . . Von MAXIME KOWALEWSKY [authorized translation from the Russian). III. Englische, deutsche, italienische und spanische Wirtschaftsverfassung in der zweiten Hälfte des Mittelalters. Berlin: R. L. Prager. 1905. 8vo. 501 pp. (M. 7.50.)It would hardly be profitable to most of our readers to report fully on a German translation from a Russian original of which the date and place of publication do not appear, dealing largely with matters accessible in English. We observe that Prof. Maitland's and Mr. Round's work is used, but Prof. Vinogradoff's "The Growth of the Manor' is not, and Dr. Liebermann's critical edition of the Anglo-Saxon laws appears to be ignored, Mr. Kovalevsky's general competence is, of course, beyond question.

The Law and Customs of the Stock Exchange. By RUDOLPH E. MELSHEIMER and SAMUEL GARDNER. Fourth Edition by WILLIAM BOWSTEAD. London : Sweet & Maxwell, Lim.; Effingham Wilson & Co. xxiii and 237 pp. (78. 6d.)—This book has been enlarged and a great many additional cases have been added since the publication of the third edition in 1891. The Stock Exchange Rules and Regulations are given in the Appendix.

The Law Annual, 1906. Edited by GEOFFREY ELLIS and Max A. ROBERTSON. London and Edinburgh: Wm. Green & Sons. 8vo. Each section paged separately. (88. net.)—This work, in addition to the usual legal information, contains sections dealing with Contract and Commercial law, Bankruptcy, Companies, Landlord and Tenant, Master and Servant, Criminal law, Summary Jurisdiction and Licensing, Solicitor and Property, Conveyancing and Chancery. The text of the principal Acts governing the law in each section is given. There are also a ‘Dictionary of Points of Law,' and a section on Colonial law—the latter compiled by Mr. Justice Wood Renton, of Ceylon.

1905. 8vo.

[ocr errors]

The General Principles of the Law of Corporations (Yorke Prize Essay, 1902). By C. T. CARR. Cambridge: at the University Press. 1905. 8vo. xiii and 211 pp. (75. 60.)- Review will follow.

The Revised Reports. Edited by Sir F. Pollock, assisted by 0. A. SAUNDERS, J. G. PEASE, and A. B. CANE. Vols. LXXVII and LXXVIII. 1846–9 (6 Hare; 2 Phillips; 13 Queen's Bench; 7 Common Bench; 3 Exchequer; 10 Jurist). London: Sweet & Maxwell, Lim.; Boston, Mass.: Little, Brown & Co. 1905. La. 8vo. Vol. LXXVII. xiv and 928 pp.; Vol. LXXVIII. xiii and 916 pp.

An Index-Digest of the Cases reported in Vols. 1-LXV. of the Revised Reports. 1785-1845. Compiled by EDWARD Potton. London : Sweet & Maxwell, Lim.; Boston, Mass.: Little, Brown & Co. 1905. La. 8vo. vii pp. and 954 cols.

Selden Society. Year Books of Edward II. Vol. III. 3 Edw. II. A. D. 1309-10. Edited for the Selden Society by F. W. MAITLAND. (Vol. XX. 1905.) London: B. Quaritch. 1905. 4to. xciv and 224 pp.

Die Lehre der Rechtssouveränität. Von H. KRABBE, Groningen: J. B. Wolters. 1906. 8vo. 254 pp. (M. 4. 50.)

The Law of Repairs and Improvements, including Ecclesiastical Dilapidations. By J. H. JACKSON. London: Butterworth & Co. 1905. 8vo. xliv, 318 and 55 pp. (158.)

The Annual County Courts Practice, 1906. Edited by His Honour Judge WILLIAM CECIL SMYLY, K.C., and WILLIAM JAMES BROOKS. Two vols, in one. London: Sweet & Maxwell, Lim.; Stevens & Sons, Lim. 8vo. Vol. I. xxxiv and 1183 pp.; Vol. II. vii, 624 and 178 (index) pp. (258.)

The Yearly County Court Practice, 1906. By G. PITT-LEWIS, K.C. and Sir C. ARNOLD WHITE. 1906 edition by His Honour Judge WOODFALL and E. H. TINDAL ATKINSON, assisted by WILLOUGHBY JARDINE. Chapter on Costs and Precedents of Costs by MORTEN TURNER. Two volumes in

London: Butterworth & Co.; Shaw & Sons. 8vo. Vol. I. cyi and 1184 pp. Vol. II. xxxii and 622 pp. (258.)

The Lawyer's Remembrancer and Pocket Book for the Year 1906. By ARTHUR POWELL, K.C. London: Butterworth & Co. Sm. 8vo. 153 pp. (28. 6d. net.)

Brown and Powles' Law and Practice in Divorce and Matrimonial Causes. Seventh Edition, re-arranged and re-written by L. D. POWLES. London : Sweet & Maxwell, Lim.; Stevens & Sons, Lim. 8vo. xxii and 789 pp. (258)

Statutes of Practical Utility passed in 1905. With Notes and selected Statutory Rules. By J. M. LELY. London: Sweet & Maxwell, Lim.; Stevens & Sons, Lim. 1905. La. 8vo. viii and 557-787 pp. (78. 6d.)

Sweet d. Maxwell's Diary for Lawyers for 1906. Edited by FRANCIS A. STRING ER and J. JOHNSTON. London : Sweet & Maxwell, Lim.; Manchester : Meredith, Ray & Littler. 8vo. xxxviii and 483 pp. + Diary. (38. 6d. net.)

The Law relating to the Taxation of Foreign Income. By John BUCHAN, with a Preface by the Right Hon. R. B. HALDANE, K.C., M.P. London : Stevens & Sons, Lim. 1905. 8vo. lxxxiv and 123 pp. (108. 6d.)


The Editor cannot undertake the return or safe custody of MSS.

sent to him without previous communication.
His aldress is 13 Old Square, Lincoln's Inn, not Oxford.



No. LXXXVI. April, 1906.



HE report of the Royal Commission on Trade Disputes and

Trade Combinations (1906, Cd. 2825) is a most important contribution to this very troublesome subject. We could hardly have a more weighty joint opinion as to the actual state of the law than that of Lord Dunedin (perhaps still better known as Mr. Graham Murray) and Mr. Arthur Cohen, with which Sir Godfrey Lushington, though taking bis own line as to the desirable amendments, is in pretty complete accord. Sir William T. Lewis's dissent, so far as concerned with matters of law, need not be considered among lawyers; and as a lay opinion regarding matters of policy it may at most be set off against Mr. Sidney Webb's general agreement with his colleagues. One result, in the present writer's opinion, is that, notwithstanding Lord Halsbury's emphatic and persistent dicta and some less explicit utterances of other noble and learned lords, the doctrine that conspiracy is a distinct civil cause of action is finally exploded. Mr. Cohen's memorandum (pp. 20-23) seems conclusive. A conspiracy to commit an indictable offence or an act amounting in itself to a civil wrong is a cause of action. An agreement to do something which, if done by one person, would be neither indictable nor actionable, is not a known species of cause of action. Doubtless there are offences not capable of being committed by one person, such as riot; and this is the simple explanation of Gregory v. Duke of Brunswick ; as to which we may add that, having carefully examined the reports in 6 M. & G. and 6 Scott, N. R., we can find no material variance between them. We believe it can also be shown that on the pleadings no such point as has been supposed was decided or open for decision, but it is not worth while to pursue this (cf. the Columbia Law Review for March 1906, at pp. 208, 209).

Another weighty memorandum is on Allen v. Flood (pp. 24-30). This is also by Mr. Arthur Cohen, and also has the concurrence of

[blocks in formation]

Lord Dunedin, Sir Godfrey Lushington, and Mr. Sidney Webb. It puts the question: Is a person liable for doing any act which, though not in itself an actionable tort, amounts to an interference with or molestation of another person in his trade, business, or employment ? and answers in the negative. We agree that there is no such specific right not to be interfered with in one's business. But then the wider proposition is submitted 'that there is no general rule of law that a person who by some act intentionally does harm to another is prima facie liable to him.' We cannot agree with this, and we appeal from it to some words of Lord Bowen which, occurring as they do in a case on a very special subject-matter, appear to have been overlooked in recent discussion. 'At Common Law there was a cause of action whenever one person did damage to another wilfully and intentionally, and without just cause or excuse': Skinner & Co. v. Shew & Co. (1893] 1 Ch. 413, 422, 62 L. J. Ch. 196. In the particular case, no doubt, good faith would have been a 'just cause or excuse,' in the sense that bad faith was a material part of the cause of action; and this

1 is what the context proceeds to expound. But it is not and never was generally true in the Common Law that good faith is a justification or excuse; and Bowen L. J., as he then was, assuredly was not the man to state a legal proposition of the widest import without meaning his words to have their full effect. They would be stultified if `just cause or excuse' included the fact that the harm done to the plaintiff could not be ear-marked as the violation of a known specific right. Compare the earlier and similar dictum of the same eminent judge in the Mogul Steamship Co.'s case, 23 Q. B. Div, at p. 613; this is limited in terms to damage to property or trade, but has been approved without that qualification in an opinion of the Supreme Court of the United States delivered in 1904 by Holmes J. “It has been considered that, prima facie, the intentional infliction of temporal damage is a cause of action, which, as a matter of substantive law, whatever may be the form of pleading, requires a justification if the defendant is to escape. . . If this is the correct mode of approach, it is obvious that justifications may vary in extent according to the principles of policy upon which they are founded, and while some, for instance, at common law, those affecting the use of land, are absolute others may depend upon the end for which the act is done. ... It is not sufficient answer to this line of thought that motives are not actionable, and that the standards of the law are external. That is true in determining what a man is bound to foresee, but not necessarily in determining the extent to which he can justify harm which he has foreseen'; Aiken v. Wisconsin, 195 U.S. 194,



« PreviousContinue »