9 N. Z. L. R. 413, per Williams and (though suggesting a possible distinction) Denniston JJ. The Court was equally divided.

It was a common practice of reporters in the latter part of the eighteenth century, and even later, to report decisions in the name of 'The Court,' without mentioning what judges were present, when separate judgments were not delivered. Modern reporters have generally abandoned this practice as inconvenient. We do not know why a reversion to it appears in the February number of the Law Reports (In the Goods of Everley, '92, P. 50: 'The Court made a grant,' &c.).

Lord Bramwell contributed a pithy and characteristic article on cross-examination to the February number of the Nineteenth Century. Most of our readers will have read it long before this note is published. We agree with Lord Bramwell in the main, and will merely add one more reflection to his. Brutal or malicious cross-examination is a blunder as well as a social offence. It may ruin the case for which it is used. If competent counsel do commit this offence, it is not committed out of mere gratuitous perversity. They would not run the risk to please themselves. It must be then to please somebody else. And who can that be? Manifestly their own clients, if any one. We do not say a barrister is justified in stooping to gratify such tastes; but the fault is ultimately with the public more than the profession. If all litigants, or a clear majority, were determined to fight like gentlemen, these things would not happen. Even so many a well-to-do British parent sends his boys to school with the broadest hints, by conduct if not in words, that it matters nothing whether they work or not, and then grumbles at the schoolmaster for not making them scholars.

It has become quite a settled custom for judges of the Supreme Court to speak of one another as brethren. Thus Mathew J. agrees with my brother Collins,' '92, 1 Q. B. at p. 93. It is a pleasant and courteous custom, though its original reason has ceased. Before the Judicature Acts the judges of the Superior Courts at Westminster addressed each other, and also serjeants pleading before them, as 'brother,' not because they were judges, but because they were serjeants at law. The Lords Justices of the old Court of Appeal in Chancery, and the Vice-Chancellors, never used the term, so far as we remember. After the Judicature Acts came into operation there

was some little hesitation for a while. A subtle question might still be raised whether the few surviving serjeants ought or ought not to be addressed in Court as 'Brother A.' by modern judges who have never been serjeants. It is a curious little bit of the history of forms, and might easily be forgotten but for one happy accident. 'Brother Buzfuz' will preserve it so long as men read the Pickwick Papers.

It seems convenient to repeat in a conspicuous place that it is not desirable to send MS. on approval without previous communication with the Editor, except in very special circumstances; and that the Editor, except as aforesaid, cannot be in any way answerable for MSS. so sent.

VILLAINAGE IN ENGLAND1.

HE appearance of Mr. Vinogradoff's work, or rather of its first instalment, has long been awaited with interest by all who are engaged in studying the history of European society. Mr. Vinogradoff is well known as an expert in the study of mediaeval documents, and is thoroughly acquainted with the details of the judicial and manorial records which have in recent years appeared in such surprising abundance. Historians are learning, as is pointed out in the introduction to these Essays, to take such legal and economic documents more and more into account as compared with what may be learned from chronicles and statutes. The time has come for the concentration of results, and the collection. of the general principles that may be found underlying a multitude of instances. Mr. Seebohm and Mr. Gomme have already done much in this way to illustrate the history of the village communities in this country. Mr. Seebohm, following perhaps too closely in the steps of Guérard and Fustel de Coulanges, finds the source of the village customs in the institutions of the Roman province of Britain. Mr. Gomme's work takes note of even older influences, and regards the appearance of such communities in our country as being in the nature of a survival from prehistoric times; he will not allow that the group of men with common duties and privileges and cultivating their lands in common ought to be regarded as a peculiar institution of the Aryan race, and he claims in a very forcible argument that our study should be regarded rather as belonging to 'the science of comparative custom' than as a chapter in the history of a particular people. Both writers have made good use of our mediaeval records in the exposition of their divergent theories, and it is now a necessity for everyone who would introduce or support another doctrine to refer to the same body of evidence and produce the same kind of proofs. Mr. Vinogradoff appears among the champions of the Teutonic origin of our village customs, and as an opponent of M. Fustel de Coulanges, 'the most remarkable of French mediaevalists,' so far as he fought against the Germans and contended for an early development of private property in connexion with

1

Villainage in England. Essays in English Mediaeval History. By Paul Vinogradoff, Professor in the University of Moscow. Oxford: Clarendon Press. 1892. 8vo. xii and 464 pp.

Roman influence.' He is led of course to oppose the same kind of doctrine as it appears in Mr. Seebohm's work, while he pays a well-earned tribute to the 'originality and width of conception of one who has done great things for the advancement of social history.' The Essays now before us show that he is well equipped for his task. He had already studied the Cartulary of Battle Abbey and Miss Lamond's edition of Walter of Henley before they appeared in print, and he is perfectly familiar with the Cartularies of Ramsey, Bury St. Edmunds and St. Paul's, and the manorial rolls of Broughton, King's Ripton and Cressingham, besides Plea Rolls and Hundred Rolls and a multitude of other public records. The details of Mr. Seebohm's work, as will appear later, are closely discussed in these Essays. Mr. Gomme's latest book, however, seems hardly to have come to the writer's notice in time for making as many references as he would have desired. The records above-mentioned, as the author points out, present us with a mass of materials of one and the same kind,' which, for all its wealth and variety, presents great facilities for classification and comparison.' The author proposes to himself to bring together the results of the feudal period, and by that means to gain the power of working back into the 'imperfectly described pre-feudal age,' and to open the way by careful essays on the documents of the twelfth and thirteenth centuries to another work, or another portion of the same great work, on the origins of English peasant-life in the Norman and pre-Norman periods.'

The introduction to these Essays deserves very careful attention. Mr. Vinogradoff does not of course attempt to describe the whole course of historical study in this country; but he says enough in a few pages to indicate the scope of his work as contrasted with what has been done before, and to show 'in what perspective the chief schools of historians present themselves to his view, and in what relations they stand to each other.' He deals lightly with the work of the seventeenth and eighteenth centuries. The learning of Selden and Madox was concentrated on particulars, and they never dealt with the history of the nation as a whole. Lord Coke receives hard usage; it is allowed that he brought facts into a system, but it was of the strictly legal kind; we are told of his undigested historical knowledge and of his naive perversion' of most of the particulars. Most of the historical arguments of the last century are dismissed as being nothing but political tracts, and one cannot help agreeing to some extent with the severity of the judgment passed upon the elegant compilations of Blackstone. The real study of the subject began on the Continent with the philosophic methods of Niebuhr and Savigny; in our own country Allen traces the kingly power to the traditions of the Empire, and

Sir Francis Palgrave began to exercise a powerful influence in the historical field by his entirely new construction of Anglo-Saxon history.' Mr. Vinogradoff regards the History of the Commonwealth as deserving our special attention and being certainly the first attempt to treat the problems of mediaeval social history on a large scale and by new methods.' Hallam is praised, but is relegated to a secondary post, as being chiefly concerned with constitutional history and the discussion of technical points of law. In Palgrave's view of our ancient agrarian system the Anglo-Saxon invaders were a select band of conquerors who reduced the British natives to serfdom and he accounted for the mixed organisation' of the manor or township by the theory that the English modified their old communal institutions as soon as they becaine acquainted with the system of individual ownership and entered upon their Roman inheritance.'

:

Too much stress has often been laid on the fact that the barbarian institutions were much affected by their contact with the civilisation of the Empire. That influence was much greater upon the Continent than in our own country, where the Roman usages scem to have been adopted late and mostly at second-hand, being borrowed in great part from the Romanised Franks. But even with regard to England theories have been broached as to the continuity of the provincial institutions which would leave hardly any room for the usages of our German forefathers. The case is somewhat different with respect to France, where the invaders steadily endeavoured to adopt as much as possible of the older system. Mr. Vinogradoff sums up the matter with a strong feeling in favour of the German school. Thierry, he complains, argued for a gradual rise of Gallo-Roman civilisation against the Teutonic conquest; men of great power and note, from Raynouard and B. Guérard down to Fustel de Coulanges in our own days, have followed the same track with more or less violence and exaggeration ; they are all at one in their animosity towards Teutonic influence in the past, all at one in lessening its effects, and in trying to collect the scattered traces of Romanism in principle and application.' He admits that the German school responded boldly to the attack, and went as far as the Romanists on the other side.' When he comes to the later English historians he shows how German scholarship found potent allies in this country; the Germans and English are found fighting in the same ranks; 'Kemble, K. Maurer, Freeman, Stubbs, and Gneist form the goodly array of the Germanist School on English soil.' We may illustrate this point by a reference to the Constitutional History, in which Dr. Stubbs traced the descent of our institutions from the primaeval