SIR FREDERICK POLLOCK, BART., LL.D., CORPUS PROFESSOR OF JURISPRUDENCE IN THE UNIVERSITY OF OXFORD. JACOB-TURNER & RUSSELL (to p. 107)–6 MADDOCK (from LONDON: SWEET AND MAXWELL, LIMITED, 3, CHANCERY LANE. BOSTON: LITTLE, BROWN & CO. 1896. PREFACE TO VOLUME XXIII. In the Chancery part of this volume we have two leading cases on the custody of children, Lyons v. Blenkin, p. 38, and Shelley v. Westbrooke, p. 47. The latter case has often been misapprehended in popular writings. Lord Eldon did not deprive Shelley of the custody of his children merely because he held unorthodox opinions, but because the manner in which he put his opinions in practice made it clear to the mind of the Court that it would be prejudicial to the children's interests if they were brought up by him. To that extent, and to that extent only, the decision is of authority and has been followed. At the same time the Courts were certainly disposed two generations ago to take a much stricter view of the limits of lawful public discussion than they do now. In Lawrence v. Smith, p. 123, we find it laid down (at p. 125) "that the immortality of the soul is one of the doctrines of the Scriptures"—which seems, in that unqualified and universal form, a disputable piece of theology-and that "the law does not give protection to those who contradict the Scriptures"; the result being that an injunction was refused to restrain the pirating of a book alleged to be unorthodox until the question whether it was entitled to copyright had been tried at law. This and a few similar cases have never been overruled, but they are certainly not the law of any modern court of equity. Then in R. v. Davison (pp. 295, 298) we find the Court of King's Bench professing that it does not wish to discourage defendants from "a bold as well as a legitimate course of defence," but holding that a defendant on his trial for blasphemous libel was guilty of contempt of Court when he attempted to justify his opinions. In future volumes of the Revised Reports we shall have opportunities of watching the gradual rationalizing of the law on this head. It may be inferred, however, from a purposely vague passage in Lord Eldon's judgment in Lyons v. Blenkin, that he was prepared (with greater liberality than Cobbett's) to hold that an Unitarian was not necessarily a bad citizen. Another case which shews the controversial tension of the time is R. v. Burdett, p. 284, a prosecution for libel on the Government in comments on the "Peterloo" affair. In modern times comments quite as severe, and probably less founded in fact, have often been publicly made with impunity. Yet the Court, in this very case, declared the essential principles of public law and criminal justice in terms to which no exception can be taken. The argument is not that the Government may not be attacked because it is the Government; not that it is wrong in itself to bring the gravest charges against the King's servants, so that they may be brought to proof in the common course of justice; but that the defendant's statement amounts to nothing less than a charge of murder, and the Court cannot, in fairness to the persons so charged, try the truth of the matter on affidavits. In a less contentious region we have Cook v. Collingridge (p. 155), a case in which the decree (p. 767) is almost more important than the judgment: it is still referred to as a leading authority on the nature and incidents of good-will. Rundell v. Murray, p. 75, deals with the curious and generally unpractical topic of a gratuitous license to publish. Beaumont v. Dukes, p. 110, on the effect of collateral "representations" made at the time of a contract for sale and not fulfilled, belongs to a class of cases which gave trouble for some time. Little or nothing has been heard of them since the Judicature Acts. Perhaps equity lawyers have found that the common law was wider than they supposed. At any rate it seems now to be wide enough. These Bretherton v. Wood, p. 556, is one of a line of cases on the possibility of an independent cause of action in tort arising out of negligence in performing a contract. authorities, after being slighted for a time, are now upheld by the latest considered decisions of the Court of Appeal : see Taylor v. Manchester, Sheffield & Lincs. Ry. Co. '95, 1 Q. B. 134, which the Court refused to narrow in Kelly v. Metropolitan Ry. Co., ib. 944. Perhaps it is not too fanciful to see more than coincidence in time between these changes and the reign and fall of the "orthodox" political economy, which tended to reduce everything to bargaining between individuals. As we are now in sight of two or sometimes more sets of rival reports maintaining a perpetual succession in all the Courts, it becomes necessary to have a settled rule for dealing with them. The ideal of a critical edition would be to examine all known reports of every case, and reproduce what seemed best from each. But this would involve |