REVIEWS AND NOTICES.

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

Die Theorie der Exceptionen nach klassischem römischem Recht. Von J. VON KOSCHEMBAHR-LYSKOWSKI. Iter Band, Ites Heft: Der Begriff der Exceptio. Berlin: J. Guttentag. 1893. 8vo. xxiii and 174 PP.

THIS is the first Part (Heft I) of the first book of what promises to be rather an elaborate work on the meaning and effect of the Exceptio in the Roman Law. It is a genuine product of a German workshop. It follows somewhat on the lines of Lenel's Ursprung und Wirkung der Exceptionen' and a similar treatise by Eisele, but the author has got certain new views upon the subject which he states with clearness and much erudition.

The common view about the Exceptio is that it was first introduced by the praetors, on grounds of Equity, as an indirect means of defence to an action. It was made use of in order to enable a defendant to defeat a claim which, though well founded in law, was liable to material objections which would have made its enforcement inequitable. In other words, the Exceptio, while leaving the plaintiff's right formally subsisting, deprived it of all actual effect. It was made formally operative by the praetors inserting in the intentio of the formula a direction to the judge to inquire whether there were particular circumstances affecting the plaintiff's claim (e. g. the presence of mala fides), and to absolve the defendant if such were proved to exist. This is the notion of the Exceptio which seems to be indicated by Gaius in his Institutes (IV. § 116).

Mr. von Koschembahr-Lyskowski, however, traces the origin of the Exceptio to a more fundamental conception. He holds that it arose out of an early realized distinction between substantive and applied lawbetween what he calls objektives Recht als solches' and 'objektives Recht in seiner Anwendung.' The former of these categories represents the idea of legal institutions theoretically considered-the ipsum jus; the latter category is concerned solely with the various means by which claims arising out of such legal institutions may be enforced by the tribunals-the actiones.

The principles of the law as such, says the author, though they do generally do not always harmonize with the law in its application; the two may be in opposition to each other. And this want of harmony is shown by the Exceptio. Where the law as such has been left unaltered

in its application the action to enforce it will take full effect; where its principles have been modified or reformed in their application an Exception will be available. In other words, an alteration of the law in its application is effected by the Exceptio. But by the Roman jurists, it is said, it was only objektives Recht in seiner Anwendung' that was regarded as of practical importance; substantive right as established by custom or statute was comparatively indifferent to them; it was to the development of the law in its processual form that they devoted themselves. This view of the matter is supported by, inter alia, the frequent opposition in the texts between the expressions ipso iure and ope exceptionis-an opposition which does not depend upon that existing between ius civile and ius praetorium, because even the Civil Law recognizes Exceptions, as, for example, the lex Praetoria, the Senatus-consultum Velleianum, &c. In short, in the author's view a plaintiff or claimant could only be said to have a positive legal right when he not only had an action but his action was not invalidated by the existence of any Exception.

We cannot say that the arguments by which the author supports his theory are at all convincing. On the contrary the theory, viewed in the light of the texts, leads to numerous difficulties. It is difficult to see, for instance, how the rules as to prescription or compensation, as defences to an action, are to be explained by it. Is it to be said that the plaintiff in an action in which such exceptions exist has no substantive right remaining and that they are to be given effect to by the judge whether pleaded or not? For another thing the logical analysis involved in the distinction between the law as such and the law in its application is much too abstract to have been realized by the Roman jurists of the Republic, who were above all things practical lawyers. Further, it seems necessary for the author's theory to hold that Exceptiones were admitted in the old forms of Quiritarian actions (the legis actiones), but of this there is no evidence. No doubt the later statute law, following the example of the praetorian method, introduced particular Exceptions which were to be enforced by the magistrates, in order to render ineffectual in action a right existing under the Jus Civile, as in the Senatusconsultum Velleianum and Senatusconsultum Macedonianum, but this was done only occasionally and had apparently no such significance as the author supposes.

In the latter portion of this Heft (pp. 115-170) the author proceeds to apply his general theory to particular kinds of Exceptions, and he takes as an illustration the Exceptio doli in its relation to an action based on a Stipulatio. In doing so he marks a distinction between what he calls formal-stipulation and causal-stipulation-the former embracing all cases in which the contracting parties had as their sole object the creation of a verbal contract without the presence of any material element inducing it; the latter being based upon some material element such as loan or sale.

In an Index prefixed to the volume the author gives a valuable collection of all the places in the classical sources of the law in which the words exceptio, excipere, replicatio, replicare, duplicatio, duplicare, and triplicatio are to be found.

On the whole, it must be acknowledged that, while there is reason for doubting the soundness of Mr. von Koschembahr-Lyskowski's views, his work is one of much ability and characterized by thorough acquaintance with the Roman texts and modern literature of the subject.

H. G.

A Treatise on the Foreign Powers and Jurisdiction of the British Crown. By WILLIAM EDWARD HALL. Oxford: Clarendon Press; and London: Stevens & Sons. 1894. 8vo. xv and 304 pp.

THIS is a masterly performance, as might be expected from the author of the standard English text-book upon International Law. It deals with topics which, while of great practical importance, have hitherto been very imperfectly explored, and could indeed be explored to good effect only by one whose previous studies have specially equipped him for the enterprise.

It may perhaps be doubted whether, as a work of art, the book does not suffer from the attempt to comprise in it, probably with a view to rendering it, as far as possible, a complete vade mecum for consuls, classes of questions which have little in common. Hence a certain lack of unity, and a somewhat ambiguous title. The Foreign Jurisdiction' of the British Crown is well enough known, but what precisely are its 'Foreign Powers'? Mr. Hall explains in an introductory chapter in what sense he uses this term; and we gather that the topics with which he proposes to deal are what we should be inclined to describe as: (1) the machinery which a State is tacitly permitted to organize in foreign territory, for facilitating, or recording, acts performed by, or events affecting, its subjects while therein resident; and (2) the coercive jurisdiction which is expressly conceded to a Western State in Oriental countries, or is assumed by it in uncivilized quarters of the globe. The two things are essentially different, and would best be discussed in separate treatises. If, for practical reasons, they must be dealt with in one and the same volume, it would seem preferable to draw the line between them as above, i. e. between non-contentious machinery and coercive jurisdiction, rather than to distinguish, as Mr. Hall has done, between Powers and Jurisdiction of the Crown in States of European civilization,' and 'Powers and Jurisdiction of the Crown in Eastern States, in Protectorates, and in barbarous countries.' The fact is that what Mr. Hall means by the Powers of the Crown' are very similar all the world over; while its Foreign Jurisdiction' is exercisable only in Oriental and barbarous countries. Mr. Hall's derivation of both species of rights from the well-established right of a State to protect its subjects from ill-treatment is also open to question. The right of a State to insist that its subjects, who, as Grotius says, 'sunt quasi pars Rectoris,' shall everywhere be free from injury, is rudimentary and obvious. But the right to exercise administrative functions in foreign territory is precarious and of comity only, as may be seen in the stringent prohibition to any but German officials to administer an oath in Germany; while the foreign exercise of coercive jurisdiction is derived either from Treaty with an Oriental Power, or from quasi-sovereignty in an uncivilized country. On such points as these Mr. Hall is, however, well entitled to his own opinion, and there can be no doubt as to the value of the information contained in his book, or the skill with which he has managed to give a clear account of very tangled matters. He has had access to unpublished and confidential documents, and has made discreet use of his advantages. He has an admirable chapter upon the strangely misunderstood topic of Protectorates and Spheres of influence'; and in a manner which leaves nothing to be desired, and has never before been attempted, he discusses every question with reference to the British Constitution as well as to the Law of Nations. The Appendix contains the relevant Acts of Parliament and some of the Orders in Council. Besides a general index, there are indices of Statutes, of Orders in Council, of Cases and of Treaties. T. E. H.

The Laws and Jurisprudence of England and America: being a series of Lectures delivered before Yale University, by JOHN F. DILLON. Boston Little, Brown & Co. London: Macmillan & Co. 1894. La. 8vo. xvi and 431 pp. (168. net.)

JUDGE DILLON writes in a generous and welcome spirit of piety towards the Common Law and the legal antiquities of the mother-country, and is abundantly courteous in acknowledgment and citation of English lawyers' work. Besides this, he wins the sympathy of the present reviewer at all events by relegating to a very subordinate place the bare and bald analysis with which the name of Jurisprudence has been too much bound up in England for the last generation or more. He rightly vindicates as the field of Jurisprudence the whole scientific treatment of law nothing more, therefore not speculative ethics or politics; but also nothing less. We should think well of such a book as a whole even if we thought less well of it in detail. Let us hasten at once to say that Judge Dillon is anything but an unpractical jurist. He has administered both Federal and State laws, and is the author of a well-known treatise on municipal corporations.

This book is intended, in the first place, to give American students a taste for the history of our system, 'our law in its old home,' as well as to introduce them to the general lines of its American development. So far as we can judge, it is excellent for those purposes. It does not profess to be, as it could not be, specially adapted for English purposes: but English students may consult many parts of it with advantage, and matured English lawyers who wish to revive their antiquarian memory, or to put themselves at the point of view of a thoughtful modern American, will find it pleasant and profitable reading. Our judicial system and the Inns of Court are treated with a light hand, but with adequate knowledge of things both new and old; and the remarks on such practical topics as trial by jury and the possibilities of codification carry a greater weight of well-considered experience than will be found in them, perhaps, at first sight by unprofessional readers, or even by lawyers who have never tried their own hand at this kind of exposition.

The learned author believes in trial by jury, but regrets the extreme narrowing of the functions of the Court which has been introduced by the statutes and constitutions of some American States. Few English lawyers will differ with him on this point. He is also an advocate for progressive and cautious codification, a subject on which American opinion is still much divided. The premature and over-ambitious New York Codes have, in our opinion, done much to perplex it with irrelevant matter. Judge Dillon complains that the habit of submitting to the Courts printed briefs' which are really elaborate arguments is causing oral arguments to degenerate. This is an evil of which we have not much experience here. If with us anything tends to leave no room for the arguments of the Bar, it is the oratory of aggrieved plaintiffs in person. St. Paul cannot have been acquainted with the female plaintiff in person; otherwise he would perhaps not have limited his censure to speaking in the church. There are some good illustrations of the scale on which American business has to be done. Men often go a thousand miles to argue a case; and Judge Dillon mentions one case in his own experience where opposing counsel from the extreme East and the extreme West met by special trains at Santa Fé in New Mexico, the full text of the pleadings having been sent on by telegraph.

It may be worth while to point out a few small slips. The Common Law cannot be said to supply the rule of action 'in all the British colonies and

possessions.' One notable exception, the Province of Quebec, is not so very far from Yale. It is true that English criminal law prevails almost everywhere, even where some other system of civil redress wholly or partly holds the ground, and that English judicial methods and the authority of decided cases have prevailed (we believe) without exception. It is not strictly correct to say that Bacon's scheme for restoring official reports 'bore no fruit.' The fruit, such as it was, was Hetley's Reports (see Wallace on the Reporters, ed. Heard, p. 270). On p. 214 Judean is misprinted for Indian in a familiar quotation.

F. P.

The Law relating to Shipmasters and Seamen. By JOSEPH KAY, Q.C., Second Edition, by the Hon. JOHN WILLIAM MANSFIELD and GEORGE WILLIAM DUNCAN. London: Stevens & Haynes. 1894. La. 8vo. xevi and 825 pp.

THIS second edition is a distinct improvement upon the first. In the first place it consists of one volume, and that not too large for handling, instead of, as in the first edition, two volumes. In the second place Mr. Kay's practice of printing Acts of Parliament and commentary in one and the same type has been very wisely departed from. The words of an Act of Parliament have a virtue and too often a meaning which no other words can possess, and no more serious defect can exist in a legal text-book than the possibility of mistaking the words of the commentator for those of the statute. The book purports to relate to shipmasters and seamen; but it contains, necessarily, a great deal of statute and other law that concerns merchants and shipowners perhaps more directly than shipmasters and seamen. The literature of Shipping law presents the peculiarity of possessing three or four standard works of authority, and some of them of exceeding bulk, which profess to deal with Merchant Shipping law generally; yet almost every chapter of these works is the subject of one or more distinct treatises, some of which are not less well known than the great standard works from Lord Tenterden's Abbott on Shipping' downwards. In this state of things it is inevitable that the labours of the various authors should cover a great deal of ground that is common to all of them.

The subject of codification is one upon which every writer on Shipping law has something to say. The introduction of a codifying Merchant Shipping Bill into the House of Commons in August, 1893, seriously interfered with the production of Messrs. Mansfield and Duncan's work at the time when it was ready for publication. That bill has not yet become law, and in the existing state of the political atmosphere there is no certain prospect of its becoming law within any definite or measurable time. A wise discretion was exercised by the editors and publishers of the new 'Kay' in not waiting for its appearance upon the Statute Book. The Merchant Shipping Act, 1854, contains 548 sections, and is one of the longest Acts of Parliament now in existence; yet it passed through Parliament in a very short time. Things are altered now, and the codification of the innumerable Acts that have been piled upon the great work of 1854 will probably not be accomplished so easily.

Authors and editors of works upon Shipping law have a responsibility that is, perhaps, not generally appreciated in this country. Every English colony, almost every port in all the world where British ships resort, is more directly affected by the Merchant Shipping Acts than by any other class of Acts passed by the Imperial Parliament. It is not too much to say