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REVIEWS AND NOTICES.
[Short notices do not necessarily exclude fuller review hereafter.]
Ioannis Seldeni Ad Fletam Dissertatio. Reprinted from the edition of 1647, with parallel translations, introduction and notes. By DAVID OGG. Cambridge: University Press. 1925. La. 8vo. lxvi and 204 pp. (20s. net.) (In 'Cambridge Studies in English Legal History,' edited by Prof. HAZELTINE.)
It is not much to the credit of English scholarship that there has hitherto been no critical edition of Selden's dissertation on the book called 'Fleta,' nor even a tolerably careful reprint. Mr. David Ogg, of New College, Oxford, has now supplied the want in a thoroughly workmanlike fashion. Our grumble, in point of form, is at the lack of a detailed table of contents, which is only mitigated by a full index: no doubt it might be very profitable to a young scholar to make that table for himself, but modern life is too short for such exercises. The editor's method is to confine his notes on the text to verification or correction in detail and give the substance of his commentary in the form of an introduction. This, we think, is quite right, but it makes guidance for the reader all the more necessary, even where (assuming the matter to be new to him) he has learnt from Prof. Hazeltine's compact and excellent General Preface on the historical background of Selden's Dissertatio ad Fletam' what the book is about. Mr. Ogg, after reviewing Selden's materials, considers 'first, the real nature of the twelfth-century legal revival at Bologna; second, the use made by Bracton of his Roman law sources, and, third, the general influence of Roman law on English legal and constitutional principles.' On all these he is profitable, and the general result is to heighten if anything our estimate of Selden's judgment. As to Bracton, Mr. Ogg agrees with the scholars who have recently maintained that, as some of Bracton's departures from Roman law, even when he uses Roman terms, are certainly deliberate (the contract of sale, where the contradiction is plain and direct, is a striking example), so he should not be too readily presumed to misunderstand a civilian text because of a lesser variance. In some cases MS. authority seems now to prove that variations which one was tempted to regard as corruptions were purposely made,
though the purpose may not now be clear. Then Mr. Ogg points out, in a passage of special interest to lawyers, that our current maxims, though expressed in Latin (more medieval indeed than classical), are to a considerable extent of home growth.
An historian not bred to the law may be expected to fall into some technical errors, but the more serious of those, not many in all, that we meet with in Mr. Ogg's introduction are hardly of that kind. It is unhistorical to discover a party doctrine in the position that the monarch was merely an estate of the realm.' In fact 'estate of the realm' has never been a term known to the law, and literary usage has varied from the Middle Ages downwards, the three estates being sometimes taken as King, Lords, and Commons, and sometimes as Lords Spiritual, Lords Temporal, and Commons. Now Selden, as reported in his Table Talk, was clear that the King is not an estate but King of the three estates; in this he followed Queen Elizabeth, who might not have wholly agreed with some of his constitutional opinions.' Again, it was not really strange that seventeenth-century politicians should appeal to the so-called laws of Edward the Confessor, a spurious compilation which probably they had never attempted to read. The fiction was as old as the twelfth century. Surely Mr. Ogg has heard of Lagam Edwardi regis vobis reddo.' There is a more definite oversight in saying that the Star Chamber was reconstituted by the Act of 3 Henry VII. A score of years ago some students had their doubts whether the statutory commission created by that Act could really be the Star Chamber (see Pollock, The Expansion of the Common Law,' p. 82), and three years ago (in E. H. R. xxxvii, 516, for Oct. 1922), Prof. A. F. Pollard showed that the long accepted title 'Pro Camera Stellata' was an unauthorized addition made by some clerk in the second half of the sixteenth century. Moreover there is no clear evidence that this statutory tribunal, apparently intended to sit out of London, which the Star Chamber did not, ever did much business. Now a lawyer may be excused for not regularly noting the contents of the English Historical Review; but Mr. Ogg is an historian. The slip, however, does not matter much for his purpose; it occurs in a section, which is in the nature of a digression, on the Star Chamber and other extraordinary jurisdictions. By the way, if any lawyers did say in the early seventeenth century that the Court of High Commission was an illegal tribunal' they made a bad blunder, for the Court, as Mr. Ogg notes a few lines above, was statutory. Excess or abuse of jurisdiction is not the same thing as having no lawful jurisdiction at all.
One statement fairly shocks a lawyer: torture was frequently employed by the common law judges.' Never by a common law judge as such. sixteenth-century judge might be a member of the King's Council, and either in the Star Chamber or as exercising an assumed royal prerogative in matters of State' he might employ methods unknown to the common law. But that is not the natural meaning of Mr. Ogg's sentence; and the context does not assist an endeavour to regard it as guilty of no more than verbal infelicity. Yet we cannot believe that Mr. Ogg has never looked into Fortescue's 'De laudibus legum Angliae,' or has forgotten the resolution of the judges in Felton's Case; for these are things known even to novices.
For details see the correspondence in the Times Literary Supplement of July 3, 10 and 17, 1924.
As to the Dissertation itself, it is made far easier for reading and reference in this edition, the translation being divided into handy sections, and, moreover, being far less crabbed than the original. Selden's Latin, though correct enough, is neither elegant nor very perspicuous, and even good scholars in search of a particular passage will bless Mr. Ogg's English as they run their eyes over the pages. The chief danger of not being just to Selden's learning is that we may fail to allow for the conditions under which he worked. There was no British Museum; the libraries of the Inns of Court were rudimentary; the Bodleian was, at the ordinary pace of travellers, two days' journey from London; the public records were in many places and custodies, often ill kept. With anything like our facilities for collating and correcting texts it would not have been possible for Selden to find a mare's nest about Vacarius (see Mr. Ogg's Introduction at p. xxvii), and he could scarcely have missed the true form of Henry of Bratton's name. How he failed to discover and expose the absurdities of the Mirror' is more of a puzzle. Did he ever really read it? We suspect not.
Mr. Ogg is apparently disturbed by Selden's plain-spoken disregard of incompetent printers' feelings, but we cannot think it worthy of censure or even regret. Whether Caroline printing was on the whole as bad as Elizabethan is a question for specialists; in the Civil War time it can hardly have been better. Both were bad enough to deserve all Selden's castigation.
A Manual of Year Book Studies. By WILLIAM CRADDOCK BOLLAND. Cambridge: University Press. 1925. La. 8vo. xix and 162 pp. (12s. 6d. net.)
THESE lectures should do good and much needed work in impressing on the educated public outside the legal profession (and on many of the profession too) what a unique national possession we have in the Year Books, and how little credit their treatment, until quite recent years, has done to English scholarship. There are also remarks of more special value, bringing the results of Dr. Bolland's and other researches down to date; and we shall confine ourselves to noticing a few of these points. By the way, on a rather collateral matter, Mr. Bolland might have been more positive than he is about the continuance of the old law that a name of baptism may be changed at confirmation. Certainly the thing is not common, probably it never was; but there is a quite modern example in the profession-see Jones v. E. Hulton & Co.  2 K. B. at p. 451. One point which comes out is that our existing MSS. of Year Books were derived by at least two intermediate stages from the original reports. Probably the reporter's expanded notes were dictated (qu. by the reporter himself, as the only person who could read them?) to paid scribes, and from the copies taken down by those scribes further copies were made for sale. The books we have are more or less fair transcripts of such documents, not necessarily confined in any one case to the contents of a single original book of reports. Elizabethan anthologies, we may add, were made up much in this way, as may be seen in Professor Tucker's learned edition of Shakespeare's Sonnets.
Printed law books of any kind began to appear rather late. Caxton issued
none. As to the competence of the Elizabethan printers when they did set about printing Year Books, it is observable that Tottell, the first great law publisher, spelt his own name in nine different ways (p. 66). Such lipservice to revision of the text as may be found in such men's prefaces may safely be disregarded. We have the results, at any rate, to judge by, and we know they were bad. Well no one has yet attempted to discover a cryptic cipher in the printed Year Books.
Why no book of an Eyre was printed until our own time is rather a puzzle. Maybe the matter was thought obsolete. Mr. Bolland gives reasons (confirming, we think, the suspicions of other scholars) for holding that Coke knew very little of the full text of the Year Books, printed or unprinted, and relied on the Abridgements. He also points out that our printed Abridgements are only the eminent samples of a much larger class which existed in MS. Their progeny continued down to the nineteenth century in the shape of the commonplace books which every student was expected to keep.
A useful apparatus of documents is added. Let the student note that a reduced facsimile of a MS. gives the impression of the original being more crabbed than it is.
The Permanent Court of International Justice: its Constitution, Procedure and Work. By ALEXANDER P. FACHIRI.
Oxford University Press. 1925. 8vo. vi and 342 pp.
MR. FACHIRI has certainly succeeded in his object, namely, to write a practical text-book on the 'World Court.' After describing the genesis and constitution of the Court he gives us a clear and businesslike analysis of the Statute of the Court and of the Rules adopted by it, and then summarizes the first twelve cases which came before it between June, 1922, and September, 1924. Any person who is concerned with litigation before the Court will find the book a most practical guide, and others interested in the Court as students of international law and institutions will find in it most, if not all, of the information which they are likely to seek. It is no disparagement of the book to say that it could, I think, have been made even more interesting to the latter class of readers by the occasional introduction of, or reference to, materials which would not have repelled the former class. For instance, on p. 53, an explanation or elaboration of the rule that only States or members of the League can be parties in cases before the Court would not have been out of place; for it touches upon a fundamental and controversial question, namely, how far it is true that individuals cannot be subjects of international law. The builders of a less important international Court-the Central American Court of Justice took a different view in providing that the Court should take cognizance of the questions which individuals of one Central American country may raise against any of the other contracting Governments, whether their own Government supports the claim or not (American Journal of International Law, Supplement, 1908, p. 232). Again, on p. 64, where the author discusses the meaning in Article 12 of the Covenant of the expression any dispute likely to lead to a rupture,' a
reference to a number of articles bearing upon this point which have appeared since the Corfu affair would be useful, e.g. by Professor de Visscher in the Revue du droit international et legislation comparée for 1924. Similarly, on p. 66, more might have been said as to the meaning of the term "matters of domestic jurisdiction." On p. 71, where the author discusses the question of the law-creative effect of the Court's Advisory Opinions, a reference to the influence upon the development of American law produced by the opinions of the Supreme Court and certain State Courts might have been given. Professor Manley Hudson has recently discussed this matter in the Harvard Law Review' of 1924. On pp. 68, 155 and 223 he deals with a point of great importance which, so far as I am aware, is not generally appreciated. The point is this admitted that under Article 13 of the Covenant a State which has not signed the so-called 'Optional Clause' is not compelled to submit a legal dispute to the Court, nevertheless, if and when that dispute comes to the Council under Article 15 of the Covenant, that body may, as happened in the Anglo-French dispute in 1921 and 1922 over the Tunisian nationality decrees, request the Court to give an Advisory Opinion. Thus 'this case shows that the advisory jurisdiction offers, in cases of a legal nature, an indirect means of access to the Court which, in practice, is capable of being used as a not ineffective substitute for direct compulsory jurisdiction.' This important deduction by the author may be correct, but there is one link in the argument which I cannot find that he supplies, namely, must the Council be unanimous in requesting the Court under Article 14 to give an Advisory Opinion? If one of the disputants is represented on the Council, can he prevent such a request? Does paragraph 6 of Article 15 help? It will be remembered, as Mr. Fachiri mentions on P. 147, that in the case on which he bases his deduction, France, having declined to submit the matter to the Court under Article 13, later concurred with Great Britain in a joint request to the Council, once seised of the dispute under Article 15, to request the Court for an Advisory Opinion. If unanimity in the request is essential, the effectiveness of this substitute for direct compulsory jurisdiction is much impaired.
The foregoing remarks are by way of suggestion rather than of criticism. Mr. Fachiri is to be congratulated on a well-arranged, careful, and welldocumented book of great practical utility.
A. D. McN.
A Grammar of Politics. By HAROLD J. LASKI. London: Allen and Unwin. 1925. 1925. 8vo. 672 pp. (18s. net.)
8vo. 672 pp.
THIS is the most comprehensive treatise upon the science or art of politics that has been written for many a long year. To criticize in any detail a book covering such an extent of ground is quite impossible. The author has something definite to say upon every basic question of modern politics, except agriculture, which he definitely excludes on the ground of want of adequate knowledge. The exclusion is quite fair, but it makes the book as one-sided as most modern works. It approaches politics from the standpoint of the town dweller, which is radically different from, but not necessarily better than, that of the country mouse. It follows that almost every page contains statements or opinions that might be disputed,