Mr. Ridges appears to miss some important points. His statement that "the federation of all the Australasian colonies. . . under the Commonwealth of Australia Constitution Act, 1900, marks another stage in the advance of the Empire towards cohesion and unity," is one that will not find universal acceptance; to many it appears that the assimilation of the Australasian constitution to that of this country makes eventually for a complete regrouping of the Anglo-Saxon communities. Then again in discussing the various schemes of federation before the British public at present, he hardly does justice to the least ambitious of them, that of which Sir Frederick Pollock is the energetic sponsor. Mr. Ridges' point is that a committee of the Privy Council specially constituted to advise on colonial affairs would have no weight for lack of legislative or executive functions; but the answer to this is that this body might, as it became more and more useful, gradually work its way into a position of constitutional importance very much as the Cabinet has, which, indeed, is the main hope of those who advocate this measure.

The criticisms made are of details and do not affect the value of the book which, as a handbook for students or for those interested in the question of federation, should certainly prove a convenient guide. R. M. J.

A SELECTION OF CASES ILLUSTRATIVE OF THE ENGLISH LAW OF TORTS. By Courtney Stanhope Kenny. Cambridge: University Press. 1904. pp. xiv, 632. 8vo.

This attractive collection of cases published by the Cambridge Press inevitably suggests comparison with a similar volume lately issued at Oxford under the editorship of Messrs. Radcliffe and Miles. (See 18 HARV. L. REV. 159.) Both books are avowedly designed to accompany Sir Frederick Pollock's treatise on Torts; but Dr. Kenny's book follows Sir Frederick's classification more closely and is, on the whole, more satisfactory than the Oxford compilation. A logical development of the subject is evident, both in the subdivisions and in the cases under the various heads. Yet, perhaps, this collection errs in ambitiously including too much within its scope. Thus the cases on Principal and Agent might have been spared from a selection of illustrative cases on Torts. And while one hesitates to differ with an experienced teacher such as Dr. Kenny, one might well think it better to follow an inductive treatment throughout in a case-book, by commencing with specific torts, rather than to adopt Sir Frederick Pollock's method of presenting first the general principles of liability.

This collection offers a greater diversity and quantity of cases than the earlier volume, many of the opinions being considerably abridged. The compiler has wisely not confined himself to English cases. Thus, he summarizes and gives extracts from Vegelahn v. Guntner (167 Mass. 92), though this treatment is hardly adequate for a full appreciation of the case and the opinion of Mr. Justice Holmes. An interesting note on Fair Comment (p. 318) cites the recent Cherry Sisters' case in lowa (114 Ia. 298). Portions of the opinion in the famous Roberson Case (171 N. Y. 538), denying the right of privacy, are printed, and in a note (p. 367) referring to the article of Messrs. Warren and Brandeis on "The Right to Privacy" in 4 HARV. L. REV. 193, the editor comments on the failure of the "effort of the Harvard Law Review to provide a remedy." Probably by this time English readers know that the narrow view of the New York court has been changed by statute and that, still more recently, the New York doctrine has been repudiated on common law grounds by the Georgia court. See 18 HARV. L. Rev. 625. In this connection, Dr. Kenny prints a most interesting extract from an Indian decision, showing that in view of local domestic conditions, the right of privacy is recognized in India to a very wide extent. The numerous footnotes throughout the volume, though unpretentious, are suggestive. But in one of these notes the editor seems to lend unwarranted countenance to the theory of degrees of negligence. See 2 AMES & Smith CAS. TORTS, 2d ed., 143 et seq.

66

The bracketed headnotes are a regrettable feature of the work. This pernicious plan indulgently gives the answer to the problems, the independent solution of which is one of the most valuable advantages of the study of cases. Further, it results in large, dangerous generalizations of the law, some of which in the present volume are positively misleading. Thus, the headnote to the Mogul Steamship Case (p. 195) asserts that "the right of competition exists even when you conduct the competition by means so unusual as to render it 'unfair.'" Again (p. 631), “ Your breach of your contract with one person may constitute a tort against another." Throughout the book, headnotes are tainted with the ensnaring word "malice," though in several cases the editor repairs the mischief by calling attention to the misleading use of the term (pp. 187, 308). Further examples could be needlessly adduced. The danger of these notes is the greater because of their attractiveness and their convenient form as a summary of the law. Despite these defects, however, the collection is significant, not merely as another indication of the progressive tendency in English legal education, but also as an effective rejoinder to the unmerited reproach that case-books are dull and uninteresting.

INTERNATIONAL CIVIL AND COMMERCIAL LAW, as Founded upon Theory, Legislation, and Practice. By F. Meili. Translated and supplemented with additions of American and English law, by Arthur F. Kuhn. New York: The Macmillan Company. 1905. pp. xxvii, 559. 8vo.

Growing appreciation of the practical importance of a knowledge of Conflict of Laws is one of the significant features in the development of modern legal instruction. Within the last decade the leading law schools of this country have undertaken to teach the subject to their students, and gradually it is being added to the curriculum of other schools. But in spite of this renewed interest in the topic on which Mr. Justice Story wrote one of his best known and most valuable works, very little has been done by legal writers in this country to give to the profession a useful, up-to-date treatise. Much more attention has been given to the subject by Continental jurists; and it is with the work of one of them that this notice has to deal.

The opportunity for fine reasoning which is offered by Conflict of Laws particularly appeals to jurists trained in the civil law. To them, however, law is a philosophy, not a science. Each jurist works out a theory which is logically sound, and which to his mind would solve the conflicts of law. But he disregards entirely, and without compunction, decisions of courts. In the treatise of a continental jurist one finds, not the law as the court makes it, but the law as the writer thinks it should be. Professor Meili's work is no exception to this rule. For that reason its utility to the American lawyers who desire to know foreign law is limited.

On the other hand, the book is of some academic value. The author has consulted, and refers to, treatises by the best known and most distinguished jurists of the several nations of Europe, and he also refers to the codes and law of most countries in which questions in this branch of jurisprudence have been considered. The chief limitation here, and a serious one, is that the codes and law of these several countries are not considered on each and every subject discussed, but the laws of some countries are referred to under one head, and the laws of totally different countries under the next head. In other words, the treatment is not complete. It would have been better to have limited the field of countries to be considered, and to have stated the laws of the countries selected on every point.

The work of translation has been well done. The book as it appears is readable and can be readily understood. Some sentences show, by their construction, their German origin; but they are not so numerous as might have been expected. The translator has added some English and American cases, intending "to state briefly and without discussion or argument, the law recog nized in those jurisdictions, upon the principal points dealt with by the author."

Mr. Kuhn frankly says that they are in no sense intended as a full exposition of the law upon the topics treated. He has made a brave attempt, but, from the nature of things, it was impossible for him in that way to make a really valuable contribution. The leading cases on the topics treated are not in all instances given, while a number of the propositions of law are inaccurately or too broadly stated. This latter defect is due to form rather than to real error; but because of it the notes as they stand should be used with some caution. To those interested in the development of Conflict of Laws the book will still be recommended by the amount of learning and useful information gathered within its covers.

S. H. E. F.

LAW OF THE DOMESTIC RELATIONS, embracing Husband and Wife, Parent and Child, Guardian and Ward, Infancy, and Master and Servant. By James Schouler. Boston: Little, Brown, and Company. 1905. pp. xxxix, 421. 8vo. To praise a law-book because it contains so much which is not law, is ordinarily a doubtful compliment to the author. When that confused subject usually described under the title "Domestic Relations " is under consideration, however, one is prepared to see every rule suspended or reversed. This branch of law our legislatures have so diverted from its original channel that practitioners of to-day are frequently in danger of losing sight of the sources from which it starts. Yet the original common law so controls and modifies the meaning of the various sweeping statutory changes, that any opinion based upon the statutes alone is likely to be most misleading. Accordingly, the writer of the elementary treatise under discussion, who must perforce cover but a small part of the law, has chosen wisely in confining himself to the common law rules bearing upon the legal position of husband and wife, parent and child, infants, and guardian and ward, abrogated in part though they may be, and in dismissing with brief mention the widely varying statutory changes which have taken place in the different jurisdictions.

As a statement of the underlying common law this work is in most respects to be commended. Its clearness of diction and logical development of thought are refreshing. It is precisely the kind of book to be read through with profit by a person unfamiliar with the subject, but with this caution, that the reader must not attribute to it infallibility. The author, unfortunately, has a slight tendency to follow too closely the current form of statement rather than to seek for the substance of the law. For instance, in treating of the liability of infants for necessaries, he lays it down in the old way, that the infant is bound by his contract for necessaries, and fails to impress the fact that what the infant is bound to do is not to fulfill the contract by paying the contract price, but rather to pay the fair value of the necessaries. In the same way he speaks on page 65 of the liability of the husband for necessaries properly furnished to the wife as founded on the wife's agency for the husband, and yet concedes on page 82 that the usual principles of agency are inadequate to explain the law. A similar fault is disclosed in his tendency to state moral duty in terms of legal obligation. A conspicuous instance is found in the chapter upon the duties of parents as to their children, in which the author enumerates as legal duties obligations of protection, maintenance, and education, which the common law rather commends as good morals than enforces by appropriate process. As to the chapter concerning void and voidable acts of an infant, so much stress is laid upon the former that the reviewer feels some doubt whether the inexperienced reader might not be misled into thinking the proportion of void acts to voidable far greater than it really is. An unusual omission in the work is that of the names of the cases in many citations. Not the least entertaining part is the homily on marriage, beginning on page 12, in which the present day tendency toward the fuller independence of woman is somewhat deprecated. Further enumeration of defects, however, might convey a false impression of what is in reality a very useful book for the elementary student seeking a general knowledge of that branch of the law of which it treats.

H. LE B. S.

A TREATISE ON THE LAW OF CRIMES. By Wm. L. Clark and Wm. L. Marshall. Second Edition, by Herschel Bouton Lazell. St. Paul: KeefeDavidson Co. 1905. pp. xxxiv, 906. 8vo.

The second edition of this successful elementary treatise appears in a single large volume, instead of the two smaller volumes of the first edition. This is a desirable change, so far as the lawyer's use of the book is concerned; and it is probably quite as convenient for the student.

Mr. Clark's work has the qualities which make all his books valuable: clearness and completeness of analysis, lucidity of statement, and good judgment and sense of proportion. These qualities are invaluable in a book intended to meet the needs of students. The summaries of doctrine printed in heavy-faced type as "principles" are well-made, brief, and clear. Both students and practicing lawyers will find the book helpful.

One must not expect to find here original discussion of difficult problems of the criminal law; nor should one be surprised to find that the inconsistencies and blunders of the cases on larceny, for example, appear without any attempt to cure or even to point out the errors. A topic which has tried and transcended the powers of a Bishop could hardly be elucidated in an elementary treatise. We must accept the book for what it is, and be grateful; and it is a clear and useful summary of the law as it is ordinarily administered in court.

The work of the editor has been merely to bring the authorities down to date. The new matter is not so distinguished from the oid that one can say how much has been added. One useful addition, at any rate, is the references to the cases in Professor Mikell's most excellent collection.

J. H. B.

A MANUAL RELATING TO THE FORMATION AND MANAGEMENT OF MERCANTILE AND MANUFACTURING CORPORATIONS, with Forms. A Book of Massachusetts Law. By George F. Tucker. Second Edition, Revised, including Revised Laws, Statutes of 1903-1905, and Massachusetts Reports, Vol. 187. Boston: Little, Brown, and Company. 1905. pp. xxvii, 401. 8vo.

OFFICIAL REPORT OF THE UNIVERSAL CONGRESS OF LAWYERS AND JURISTS held at St. Louis, Missouri, U. S. A., September 28, 29, and 30, 1904, under the auspices of The Universal Exposition and The American Bar Association. Edited by the Secretary of the Congress. St. Louis: Published by the Executive Committee. 1905. pp. xix, 423. 8vo. CORPORATIONS. A Study of the Origin and Development of Great Business Combinations, and of their Relation to the Authority of the State. By John P. Davis. In two volumes. New York and London: G. P. Putnam's Sons. 1905. pp. ix, 318; iii, 295. 8vo. INTERNATIONAL CIVIL AND COMMERCIAL LAW, as Founded upon Theory, Legislation, and Practice. By F. Meili. Translated and supplemented with additions of American and English law, by Arthur F. Kuhn. York: The Macmillan Company. 1905. pp. xxvii, 559. 8vo. PROCEEDINGS OF THE FOURTEENTH ANNUAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS, held at St. Louis, Missouri, September 22, 23, and 24, 1904. Reprinted from the Transactions of the American Bar Association for 1904. pp. 193. 8vo.

New

A MANUAL RELATING TO SPECIAL VERDICTS AND SPECIAL FINDINGS BY JURIES. Based on the Decisions of all the States. By George B. Clementson. St. Paul, Minn.: West Publishing Co. 1905. pp. lxi, 350. 8vo.

A TREATISE ON THE LAW OF CRIMES. By Wm. L. Clark and Wm. L. Marshall. Second Edition, by Herschel Bouton Lazell. St. Paul: Keefe-Davidson Co. 1905. xxxiv, 906. 8vo.

HARVARD

LAW REVIEW.

VOL. XIX.

JANUARY, 1906.

No. 3

DOMINANT

OPINIONS IN ENGLAND DURING THE NINETEENTH CENTURY IN RELATION TO LEGISLATION AS ILLUSTRATED BY ENGLISH LEGISLATION, OR THE ABSENCE OF IT, DURING THAT PERIOD.

PROFESSOR DICEY, Vinerian Professor of English Law, in

the University of Oxford, has recently published, through Messrs. Macmillan & Co., a book with the following title: "The Relation between Law and Public Opinion in England during the Nineteenth Century." The book is the outcome of a course of lectures delivered by the author, seven years ago, at the Harvard Law School, pursuant to an invitation, accepted by him, as he informs us in his preface, to lecture at that School on the History of English Law during the Nineteenth Century. The title of the book invites inquiry. 1. In what sense does the author use the term "law"? As commonly used by lawyers, the word means law as administered by courts of justice in suits between litigating parties, but here it is clearly not used in that sense, but in the sense of legislation. 2. What does the author mean by "public opinion"? Who are the persons whose individual opinions taken in the aggregate form that public opinion which the author has in mind? Are they those whose opinions directly control legislation, i. e., the members of the House of Commons for the time being? No, clearly not. The author, it is believed, would not think of calling the opinions. of a majority of the members of the House of Commons public