Page images
PDF
EPUB

6

[ocr errors]

tion; a spirit that indeed favours · Peace' in the abstract, but is more in favour of a strong national policy, and armaments commensurate with that poliey ; a spirit that favours expenditure rather than “Retrenchment' where the objects of expenditure appeal to its ideals; and a spirit that regards Reform carrying out of a policy that Bentham would have regarded with horror.

Recent events shed a striking light on the ehange that has come over the methods of legislation. A new Parliament has been elected, pledged amongst other things to Reduction of Expenditure; and their very first legislative performance is to pass an Act for providing meals for school children. The most moderate estimate of the cost of this Act runs into many millions; but it is passed without a division, and practically without opposition. Mr. Harold Cox, apparently the only representative of Benthamite Liberalism in the House, could not even obtain a seconder for his amendment ? It seems safe to say that at any time between 1830 and 1870 such a Bill would have been rejected by the House of Commons with as complete unanimity as it is now passed.

H. J. RANDALL.

1 The Times, March 3, 1906.

320

REVIEWS AND NOTICES.

[Short notices do not necessarily exclude fuller review hereafter.]

[ocr errors]

Centralization and the Law : scientific legal elucation: an illustration,

With an introduction by MELVILLE M. BIGELOW. Boston :

Little, Brown, & Co. 1906. 8vo. xviii and 296 pp. Les Principes sociologiques du droit civil. Par RAOUL DE LA GRASSERIE. Paris: V. Giard and E. Brière. 1906. 8vo. 434 pp.

. Soziologie und Jurisprudenz. Von EUGEN EHRLICH. Czernowitz.

1906. 8vo. 23 pp. THE two first-named books, one by several learned Americans, the other by one learned Frenchman, are not much alike in form; but they have in common a certain striving after povelty which they could both well afford to dispense with. Mr. Bigelow- known to readers of this REVIEW since its foundation—comes forward as Dean of the Boston University Law School to present' (as we now read on most playbills) a group of lectures by himself and others. His school, he tells us, stands for the conception that the law is the expression, more or less deflected by opposition, of the dominant force in society ... law is the resultant of actual, conflicting forces in society. There are hints up and down the book that the Law Faculty of Boston University has a mission to combat an unprogressive historical school—perhaps, if we read correctly between the lines, not very far on the other side of the Charles river-which denies these verities. The present writer is not acquainted with any such school, and would not recognize it as historical if it existed. Since Montesquieu's time, at latest, all students of human institutions who need be considered have allowed that laws are a complex function of race, tradition, and circum. stances, and are stable just in proportion as the social environment is so. Sir Henry Maine devoted himself to showing that archaic laws reflect with great faithfulness the conditions, economic and other, of archaic society. Neither does it seem to us a startling observation that, in the region of judicial discretion and the policy of the law' as well as of positive legislation, the judgment of persons in authority is influenced, if not exactly by the order of ideas which tends to prevail outside, at least by a compromise between the ideas of advanced thinkers and those among which judges or ministers were brought up and formed their minds. The process has been admirably described by Prof. A. V. Dicey in his book on Law and Public Opinion in England; and that book has been warmly welcomed and praised in the Harvard Law Review by the founder of the modern Harvard Law School.

Certainly there is plenty of room for discussion as to the relative importance of different factors in the social environment, and how far this proportion is itself constant or variable. Mr. Brooks Adams, who contributes to this volume some of the letter and, we guess, most of the spirit, appears to hold that economic facts and tendencies count for almost everything, and the deliberate opinion of the best citizens about the common weal for nothing or next to nothing. Assuming that Mr. Brooks Adams would not go so far as to annex the whole of jurisprudence to the history of trade and commerce, that is an ingenious and arguable opinion; it is not a new method.

Again, the adaptation of judicial opinion to the needs created by the environment can, by the nature of the case, be no more than approximate at a given moment, and the approximation will sometimes be rougher and sometimes closer. Also the process of adaptation is easier under some political constitutions and more troublesome under others.' It is quite possible to have the machinery too finely adjusted and too sensitive to external indications, for the first business of legal justice is to be certain. But complaints of excessive friction are more usual, especially where, discretion, both judicial and legislative, is confined, as in the United States, within the bounds of a written constitution. Mr. Brooks Adams complains rather loudly. Lawyers, perhaps, are hardly more competent than other enlightened citizens to judge how far he is right, At most it is a question in the borderland of jurisprudence and politics. What presses on our American brethren is the dread of monopoly, the tyranny of combinations killing individualism with its own weapons.

It is rather strange to find Mr. Bigelow spending a dozen pages on a demonstration that Blackstone's definition of law is inadequate. For it is much worse than inadequate : it is Hobbes's definition-in essence, the command of the State-guarded by an addition-commanding what is right and forbidding what is wrong'—that must either be superfluous or convey a defective idea of a municipal law,' as Blackstone's editor Christian had already noted early in the nineteenth century. Hobbes, as is well known, says boldly that in law right and wrong are just what the sovereign declares to be such. Blackstone partly confuses and partly eludes the question. It seems, however, that some learned persons in America are still content with his definition. We do not know of any one here who is. Mr. Bigelow's own constructive contribution is much more interesting. He finds the central idea of legal right in 'freedom to do whatever is reasonable’; and the determination of what is reasonable, under all the conditions and so far as any question is open, is the function of the Courts by which the law is kept a living body of doctrine in contact with the play of social forces. We heartily agree. But surely Mr. Bigelow will not repudiate the historical school here, for he has stated excellently well in modern language that very supremacy of reason which has been asserted in the books of the Common Law through half a dozen centuries. 'No' said Stonore J. early in 1345, taking up his brother Hillary who had said, interrupting counsel and perhaps not seriously, that law was what the Justices chose : law is reason' (Y. B. 18 & 19 Ed. III, ed. Pike, p. 379). Fourteenth-century judges may have thought reason a more constant quantity than we do now, but that was chiefly because to them, as to the schoolmen dealing with the law of nature, which is really the same thing, the facts inevitably seemed less complex than they are.

We are a little puzzled when Mr. Brooks Adams speaks off-hand of a corporation as being a fiction devised to enable several persons to operate as one.' Has he really never heard of Dr. Gierke, or of the introduction in which Prof. Maitland has commended that very learned author's absolutely diverse theory to English-speaking students ? Let Mr. Brooks Adams come forth as a champion of the “fiction theory' by all means, if he will; it rather wants one. But he is not entitled to take it as undisputed.

[ocr errors]

Turning to the learned French author's book, we find that M. Raoul de la Grasserie has analysed the elements and formative influences of civil law with much care and industry, and perhaps a little too much minuteness and too many new-fangled terms. We do not think bilatéralité and publicologique lovely additions to the French language. But imperméabilité is longer; and we have seen-only on a shop-front-imperméabilisation. The author's philosophy is not always profound, but his book is well arranged and in the main lucid, and should be useful to French students. He seems to think it is improved by inserting the word sociologie in the heading of almost every chapter, and declaring that the sociology of civil law' is still unworked ground. These formalities, in our opinion, do neither good nor harm. For the rest, his aspirations and dissatisfactions are not remote from those of the Boston University Law School. “La loi doit être pénétrée d'un esprit pratique, et voilà précisément ce qui lui a manqué jusqu'à ce jour ... Le grand vice est l'anachronisme.'

M. Raoul de la Grasserie knows something of English case-law, indeed he uses the word untranslated as a term of art, and he wishes that the decisions of the Court of Cassation had positive and final authority. By virtue of the French form of drawing up judgments with concise reasons, this would be more like judicial legislation than the Anglo-American system by which both practitioners and judges in subsequent cases have to extract the ratio decidendi from discursive judgments at their own risk. Meanwhile-such is the irony of fate-Mr. Bigelow chafes under the rule of ancient reported cases, and asks, 'Would there be serious ground of regret if at last we should come to German and French ideas of precedent?' So that the learned Frenchman and the learned American envy one another across the Atlantic, each of them unconscious that he is in turn envied. • Optat ephippia bos, piger optat arare caballus.'

We are by no means sure that the learned Austrian's tract, though much the shortest, is not the best of the three works before us. Dr. Ehrlich points out that a system of law is not merely a set of rules for deciding cases, but part of a definite social structure. Jurisprudence is not merely coextensive with legislation : ‘You cannot teach law without showing to what kind of community it is to be applied. Nevertheless the rules which legal science has to find and apply can and must in turn modify the frame of society. A purely historical jurisprudence-in the sense, e. g. of trying to bind modern Roman law to the classical interpretation of the Praetor's edict—is impracticable, and law is a living branch of social science.

F. P.

Principles of the Law of Contracts. By the late S. Martin LEAKE.

Fifth edition by A. E. Randall. London: Stevens & Sons, Lim.

1906. La. 8vo. lxxxviii, 915, and (index) 60 pp. (328.) The appearance of another edition of this standard treatise within four years of the last is a welcome sign that the thoroughly sound and careful work of the late Mr. Leake-and, we may now add, his editor Mr. Randall--is appreciated by the profession. Decisions on the general law of contract have not been numerous of late, and Mr. Randall has not only been able to avoid adding to the bulk of the text, but has actually reduced it by one page. The Money.lenders Act is now transferred from the rubric of undue influence to that of occupations restricted by legislation; this was a convenient course and is now more than justified by the decision of the C. A. in Bonnard v. Dott (1906) 1 Ch. 740, that a money

.

lender who omits to register has no remedy at all. Mr. Randall cites the decisions on the Act without attempting any solution of the difficulties which a learned contributor considered in the last number of this REVIEW, the discussion of open questions not being within the plan of Leake's work as last revised by himself.

Under the head of contracts subject to an implied condition of the existence of a specific thing we find the coronation cases of the last two years duly noted.

But even in a book so severely concise as Leake it might well have been pointed out that these decisions, except so far as they are purely on the construction of special contracts, extend the rule laid down in the leading case of Taylor v. Caldwell far beyond its original scope; for the failure of the event contemplated by the parties did not, in the coronation cases, make it impossible to perform the agreement according to its terms. A man can let the use of a room with a window, and the hirer can occupy the room and pay for it, whether a procession passes the window on that day or not. Besides, the language of l'aylor v. Caldwell is clearly directed to the destruction of a material object, not the failure of an expected event. We are far from thinking the later decisions wrong; but they are new decisions on questions raised by a new class of facts.

At p. 437 we read, in Leake's own words, “A person may promise to a third party to do what he is already bound to do by contract with another; and such promise is a sufficient consideration to support a new contract with the third party; as in the case of a promise by a debtor to pay an assignee of the debt,' who is not entitled to sue in his own name: citing Morton v. Burn (1837) 7 A. & E. 19. In the present writer's opinion this is perfectly correct in principle, though much controverted among learned persons and denied by Sir W. Anson and Prof. Williston. But it may be doubted whether Morton v. Burn completely bears it out; for payment to the assignee of a bond is not, at common law, a discharge of the original obligation, in other words is not the very thing the debtor was bound to do, unless the assignee is empowered to receive payment as the obligee's attorney; and whether this was so or not in Morton v. Burn does not appear from the report. What the Court actually said on this point was: “This is not a mere nudum pactum, for the defendants promise to pay the plaintiff, a third person, whom they were not bound to pay by their bond ; and they promise in consideration of a detriment sustained by the plaintiff at their request, namely, a forbearance to enforce his right in the name of the obligee' (7 A. & E. at p. 26). It is curious that Leake's opinion and this authority were overlooked throughout a prolonged discussion of the question in the Harvard Law Review and elsewhere ; though learned Americans are of course not bound to give any English authority more weight than they think it deserves on its intrinsic merits.

F. P.

The Rule against Perpetuities. By John CHIPMAN GRAY, Royall Pro

fessor of Law in Harvard University. Second Edition. Boston (Mass. U.S.A.): Little, Brown & Co. 1906. 8vo. 664 and

xlvii pp. (268.) The first edition of Mr. Gray's “Rule against Perpetuities' appeared in 1866. It very soon attracted the attention of conveyancers in this country, and rapidly won recognition as a textbook of extraordinary excellence. His treatise is distinguished by profound and careful historical research,

6

« PreviousContinue »