REVIEWS AND NOTICES.

Short notices do not necessarily exclude fuller review hereafter.

We have decided to adopt the following notation for the sizes of books as generally sufficient for our purposes :—

12mo signifies that the page is less than 8 in. high.

We take 9 in. as being the recognised line of division between 'demy' and 'royal' 8vo. in the book trade. The signs 4to, obl. 4to, will be used, where necessary, to denote shape, irrespective of size or folding. The measurement does not, of course, include binding, for which about half an inch of shelf-height must be allowed.

Why do joiners and cabinet-makers so often make shelves just not high enough to take a full-sized octavo ?

The Elements of Politics. By HENRY SIDGWICK. London: Macmillan & Co. 1891. 8vo. xxxii and 632 pp. (148. nett.)

THE greater part of this book is devoted to matters which do not fall within the province of this REVIEW; but law is in fact a branch of politics, and Mr. Sidgwick's chapters on property, contract, and other legal topics may be read with profit even by professed jurists. At the outset of his inquiry, he examines the conception of law as the command of a sovereign authority, and shows once more that Austin's theory cannot be made to fit all the facts. In working out his doctrine of indivisible sovereignty, Austin went so far as to say that a government which is legally precluded from defining and extending its own powers is not truly sovereign; in the United States, for example, sovereignty resides, not in the federal government nor in the governments of the States, but in the combination of bodies having authority to alter the constitution. Applying this doctrine to the Belgian constitution, which has not been altered for fifty years, Mr. Sidgwick remarks, 'Surely it strains language to say that Belgians habitually obey a combination of bodies that has never been summoned to exercise its functions for fifty years.'

The general principles to which, in Mr. Sidgwick's opinion, legislation should conform are in substance the same as the principles of Bentham. Property, for example, is justified on utilitarian and individualistic principles: it is expedient that the individual should be allowed to appropriate useful things, provided that other men's opportunities of obtaining similar utilities are not materially diminished. I am disposed to think that this part of Mr. Sidgwick's theory would have been strengthened if he had given more importance to the historical origins of property. There is, in all systems of law, a merely traditional element. Land and other useful things became private property by a process of dispute and compromise; the distribution of property was effected by the actual exercise of power; and

the law, for the sake of social order, protects long-established rights, even where they cannot be shown to conform to abstract notions of justice and expediency. Society, Mr. Sidgwick suggests, has allowed individuals to appropriate land without making compensation for the opportunities of which 'individuals now landless' are deprived by such appropriation. But if land has been bought and paid for during many generations on the understanding that no such compensation is to be exacted, the legislator will have some difficulty in exacting it without social disturbance. In discussing the law of contract, the abstract method is more applicable and history counts for less; here Mr. Sidgwick is more at home. He puts us out, here and there, by using familiar terms of art in unfamiliar senses, but he explains strongly and clearly the reasons for which contracts are enforced, and the limits within which individuals may be allowed to make law for themselves by agreement. We find also much that is interesting and sound in Mr. Sidgwick's chapters on inheritance, on law and morality, and on international law. His treatment of case law in the chapter on the Judiciary seems less happy, and we can by no means approve his suggestion that the legislature should prevent the judges from making law, by declaring it the duty of a judge to give to the words of the law what he thinks their true meaning, without regard to previous decisions.' Such a rule would imply that the whole law has been codified, for where principles of common law or equity are in question, there are no authoritative' words of the law' to be interpreted. If our law ever is codified, the decisions of the judges would be the best commentary on the code: but if previous decisions are to be disregarded, the commentary will lack consistency, and a new element of uncertainty and risk will be introduced into the law. This, however, is a subject on which the profession and the public will always be more or less at variance. It is natural that laymen should wish to see the law stated in the form of a well-arranged code; it is equally natural that English lawyers should wish to retain for our courts that freedom in expounding and applying the law which they now enjoy, and at the same time to maintain the respect for authority which makes our case law a consistent and continuously developing system.

T. RALEIGH.

Year Books of the Reign of King Edward the Third: Year XV. Edited and translated by LUKE OWEN PIKE (Rolls Series). London: 1891. lvii and 528 pp.

EVERY volume that Mr. Pike publishes is better than the last. He is always finding out some new device for making these medieval reports intelligible to modern readers, and seems to be fast approaching that limit beyond which further improvement is impossible. This time he has to our mind many interesting cases in his volume. We have noted a few :-a curious record about the customary 'assize of fresh force' as administered in the borough court of Oxford so as to protect a peaceful seisin of forty weeks (p. 478):-John de Clare rendered the land into the hand of the king to the use of our ancestor' (p. 80), this is noticeable when it comes from 1341:'Note that where by an obligation one was bound in 40 marks, the plaintiff was bound by an acquittance which purported that he received 10 marks in full satisfaction of 40 marks' (p. 84):-' Vigilantibus et non dormientibus, &c.' says counsel (p. 238):- Ex nudo pacto non oritur actio' says Basset J. (p. 136), but he is not thinking of consideration or quid pro quo: In the case of John Benstide, the widow was endowed at the age of nine years and a half' (p. 160):--In spite of Quia emptores the lord of the

honour of Gloucester insists that every purchaser who buys land held of that honour must pay an arbitrary fine (pp. 98, 102)-this customary or prescriptive right was alleged even in the fifteenth century (Y. B. 14 Hen. IV. f. 2, Mich. pl. 6). Another case (p. 155) bears on the vexed question about the power of a tenant in chief of the crown to alienate his land. There are cases in other Year Books which seem to show that in the opinion of the lawyers of Edward III's reign, something happened in the twentieth year of Henry III's reign which restricted a power of alienation formerly enjoyed by the tenants in chief. Coke (2nd Inst. 66) attempts to explain this by saying that Magna Carta was confirmed, not indeed in the twentieth, but in the twenty-first year of Henry III, and that thus some new validity was given to the restrictive clause which first appeared in the charter of 1217. But Mr. Pike has a case in which a pleader seems to lay stress on an allegation that a feoffment by a tenant in chief was made before the thirtieth, not the twentieth, year of Henry III. This may at first sight seem to confound confusion, but at least it adds one new argument to the many which might be urged against Coke's explanation.

However, this volume is likely to be remembered as the merchet volume,' for Mr. Pike has devoted the greater part of his introduction to a careful and scientific examination of the mysterious payment about which so much rubbish has been written. The chief novelty that we find is a suggestion about the origin of the word merchet. May not its root be the English mearc, mark, a boundary? Sometimes the payment is only exacted when a girl or boy is married outside the manor or vill; sometimes the payment is higher in this case than in the case of what we may conveniently call 'endogamy. May it not be then that the payment is originally one which is only made when marriage takes place across the mark? This is a suggestion which should certainly be followed up, for as Mr. Pike well shows, there are great difficulties before the theory that the word has a Celtic root. All that he says about this matter is cautiously and judiciously said, and we cannot doubt that it will smooth the way for further investigations.

We hold a half promise that Mr. Pike will deal with the case of Archbishop Stratford. We sincerely hope that he will do this. If he is on the outlook for the themes of future introductions, we venture to ask for an essay on the relation between the oral debates reported in the Year Books and the enrolled pleadings. Is there in the fourteenth century any interchange of written pleadings between the litigants? At present it seems to us that there is none. Occasionally counsel seem to be pleading tentatively, they try a plea and are driven to abandon it, and the abandoned plea will find no place on the record. But we should much like to know how all this is, and some day when Mr. Pike has nothing better to do, he must tell us all about it. Probably during the last two centuries no one but he has compared the reports with the records in case after case and term after term, or has had half as good a right to speak of these things as that which he has acquired by his diligence. F. W. M.

Naval Warfare of the Future: a Consideration of the Declaration of Paris, 1856; its obligation and its operation upon Maritime Belligerents. By THOMAS WARAKER. London: Swan Sonnenschein & Co. 1892. 8vo. x and 213 pp.

By her adhesion to the Declaration of Paris in 1856 England accepted three principles of maritime warfare, which may be thus stated :—(1) that

privateering should be abolished, (2) that a neutral flag should cover the enemy's goods, (3) that the enemy's flag should cover neutral goods, save contraband of war in the two latter cases. Mr. Waraker denounces England's adhesion to the Declaration on legal, military, and national grounds. On the assumption that her representatives acted intra vires, and did in fact. bind their country (which he doubts), he holds it to be (1) 'a detrimental treaty which should not be observed in fact' (p. 36), (2) an attempt to secure 'a military war and a commercial peace,' which Lord Stowell (p. 48) declared to be a thing not yet seen in the world,' (3) as a gratuitous surrender of England's strongest weapon at sea-the practice of capturing the enemy's goods in whatever bottoms they may be found. Now it is remarkable that the author, a Cambridge resident, makes no allusion to the strong contrary opinion of the late Master of his own College, Sir Henry Maine. That great authority not only approves of the Declaration of Paris, but holds that England should accept the proposal of the United States, which did not adhere to the Declaration, that all private property at sea should be exempted from capture, if privateering were abolished (International Law, pp. 119 sqq.). England is, he says, practically the carrier of the world she is, in these days of iron ships, also the greatest constructor; her population lives mainly on imported seaborne food, and pays for it by exported seaborne manufactures. Hence any hostile interference with the carrying trade would hit her harder than any other power. Moreover in any new war, an attempt to enforce the parts of law unfavourable to neutrals, will probably turn the neutral trading community into a belligerent' (ibid. p. 117). Mr. Waraker's neglect to deal with Sir H. Maine's opinion can only be accounted for (excluding the almost incredible hypothesis of pure ignorance) on the assumption that he holds it to belong rather to the regions of abstract law than to those of practical politics. His disbelief in the restraining power of international law is indeed abundantly shown throughout the book. Whereas Maine's statement concerning the American proposal is that it might well be made by a very strong friend of Great Britain,'—our author holds that, granting that England would gain by the exemption of private property from capture, that very fact would lead her enemies either to refuse the exemption or to disregard it in war, though they might possibly have assented to it in time of peace. H. A. P. [Fides est servanda is the really conclusive answer to all speculations of this kind.-ED.]

The Principles of the Law of Torts. By L. C. INNES, Sometime one of the Judges of Her Majesty's High Court of Judicature, Madras. London: Stevens & Sons, Lim. 1891. 8vo. xxxii and 308 pp. (108. 6d.)

MR. INNES points out that a tort is produced by conduct working harm, and he accordingly bases the fundamental division of his work upon the distinction between (1) the elements of conduct and its operation, and (2) the classes of harm in which the operation of conduct results.

Under the heading Conduct are properly ranged the subjects of negligence, agency in torts, deceit and fraud, and the use of dangerous agencies, while the second division of the work deals with particular classes of rights in rem and their violation. This method of arrangement is logical and scientific and enables the author to adopt the clear analytical distinctions which are summarised on p. xxxii. The practitioner may at first sight resent the novel guise in which the subject is presented, and will turn in vain to the

index and table of contents for the familiar words trespass' and 'trover.' Still among the concrete examples which follow and illustrate the author's abstract propositions we find most of the well-known authorities collected together and brought up to date. The recent limitation of the maxim Volunti non fit injuria by the decision of the House of Lords in Smith v. Baker, '91, A. C. 325 is noted in the preface, and the alteration effected in the law by the Slander of Women Act 1891 is incorporated in the text.

The statements as to negligent misrepresentation on pp. 45 and 53 will require modification now that the Court of Appeal has in Low v. Bouverie, '91, 3 Ch. 82 declared that Slim v. Croucher (1 D. F. and J. 518) has been overruled by Peek v. Derry (14 App. Ca. 337).

In the note at the foot of p. 138 on the Admiralty rule for dividing the damage caused by the simultaneous negligence of two ships, the words 'in such proportion as can be ascertained' are misleading.

Some references too require verification; e. g. Bonner v. G. W. Ry. Co. occurs not in 27 Ch. D. 87 but in 24 Ch. D. 1. On the whole, however, we have found the work accurate and clear, and believe that it will be an useful addition to any law library. It is excellently printed and forms a handsome volume.

S. H. L.

A Treatise on the Power and Duty of an Arbitrator, and the Law of Submissions and Awards. By FRANCIS RUSSELL. Seventh Edition, by the Author and HERBERT RUSSELL. London: Stevens & Sons, Lim., and Sweet & Maxwell, Lim. 1891. La. 8vo. lxvi and 958 pp. (248. nett.)

It would be needless to do more than note the appearance of a new edition of Russell on Arbitrations, were it not that this particular edition appears under special circumstances. It is the first published since the death of Mr. Francis Russell, the original author of the book, who was however able to prepare the whole book for the press before his death in May last. In his son, Mr. Herbert Russell, the family traditions of editing have been well maintained. This edition is also the first since the passing of the Arbitration Act, 1889, which codified, and to some extent amended, the statute law on the subject. It was a matter of regret that the whole law of arbitration was not crystallised in a statutory form, and a draft bill was indeed prepared by Master Macdonell for that purpose, but parliamentary exigencies prevented this, as well as many other unostentatious but very desirable reforms. The bill as it became law made certain amendments, in some cases of a very sweeping character, as when by a short clause (§ 25), and a short provision in a schedule, it gave arbitrators, under submissions made before its passing, power to deal with costs, though in many cases that power had been intentionally omitted by the parties from their contract, in the belief that a person who must in every case bear his own costs would only make claims in substantial cases. The act however failed to rectify some glaring omissions, and left a large body of common law rules still uncodified. Its provisions, such as they are, appear to have been carefully considered by the authors, and the necessary alterations made in the text.

But the subject of arbitrations has a wider interest at the present time. The Courts have resumed sittings in London at the Guildhall for the avowed purpose of attracting back to the tribunals the commercial disputes that have been entrusted to the decision of lay arbitrators; and the Lord Chief Justice of England has welcomed the Lord Mayor of the City of London with an eulogy on the wisdom of men of business who prefer the