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CONTEMPORARY FOREIGN LITERATURE.

By CESAKE BERTOLINI,
Turin, 1900.

Della Transazione secondo il Diritto Romano.
Professor in the University of Turin.
This large and handsome volume seems to contain all that can
be known of the Roman law of transactio. The term has a con-
notation rather different from that of the English "compromise,"
in fact, in the French Code, transiger is distinguished from com-
promettre. As a modern English term of law "transaction" does
not exist. Milton, however, uses it in something of its juristic

sense in

"Shall mortal man transact with God?”

The learned author admits that he is travelling over old ground since Valeronius (1665). His bibliography seems exhaustive, and his definition on p. 33 is less open to criticism than most defini tions. By defining it as a convention he ranges himself on the side of those who class it as an obligation rather than of those who would make it the discharge of an obligation. The fact that Roman law regards it as equivalent to solutio is perhaps the strongest argument in favour of the latter view.

Roman law allowed transactio in criminal cases to a greater extent than English law allows compromise. English law has nothing corresponding to the transactio to avoid infamia, by which the offender submits to a heavier penalty than would otherwise be inflicted, in order to avoid infamia. All this is discussed at length by Professor Bertolini, as is also the curious rule as to transactio alimentorum. From Dig. ii, 15, 8, we learn that where alimenta were bequeathed by will, or given by donatio mortis. causa, a transactio was not allowed unless by judicial authority, express or implied. The object, no doubt, was that the object of the bounty should not be allowed to give up a provision for life or a term of years in return for some present benefit.

PERIODICALS.

Journal du Droit International Privé. 1900. Nos. V.-VI. Paris.

Professor P. Fiore, of Naples, begins a fruitful essay on the law governing quasi-contracts and quasi-delicts from the point of view of international law. In fact, it is an international law commentary on §§1370-1386 of the Code Civil. There is a report of Pouey v. Hordern [1900] Ch. 492, with an opinion of the

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editor that a French court would have decided the other way. There seems to be no mention of the immediately preceding case of In re Price [1900] 1 Ch. 442, which deals with a somewhat similar point.

Kosmodike. June-Sept., 1900. Berlin.

There is a continuance of the symposium in both this magazine and the Juristen-Zeitung on what seems to have been for some time a vexed question in Germany, the admission of pupils of the Real-Gymnasia to the legal curriculum, which would mean the teaching of elementary law in schools of the higher class. The review contains interesting articles on the administration of justice in Morocco, on the special importance of comparative law in the domain of private international law, and on the future of the French bar. There are two articles in the English language, one a reprint of an article on Criminal Statistics in the August number of this magazine, the other on Prisons in England and America, taken from this magazine without any acknowledgment.

Deutsche Juristen-Zeitung.

1 July-1 Sept., 1900. Berlin.

In an article on Das Volkerrecht im Burenkriege Professor von Rohland asserts, and probably with truth, that the Transvaal war affords instances of almost every question possible to be raised in the Laws of War. He complains of the insufficiency of the handbook issued by the Admiralty for the guidance of naval officers. He has, like most German jurists, strong Boer leanings. Whatever be the strict law, says he, from the ethical side, England has not acknowledged the maxim justitia fundamentum regnorum. There is a curious article by Freiherr von Bülow on the controverted question, whether a person not of noble birth can, on adoption by a noble, assume the aristocratic "von."

La Giustizia Penale. 19 June-24 September, 1900.

Rome.

There is a good deal of telegraph law, two decisions and a learned article by Signor Perroni-Ferranti in three numbers. The English lawyer will be surprised at the number of works by Continental jurists on the telegraph, e.g., Fuchs, Einige Frage aus dem

Telegraphen rechte; Serafini, Il Diritto Telegrafico. A curious case is one on p. 829, where it was held that an accusation of perjury against a witness as he was leaving the Court constitutes "outrage," and not “defamation," and that evidence of the truth of the accusation is not relevant. Another interesting question of evidence is decided on p. 935. A brought an action against B on a contract. B was referred to his oath and denied liability. The case was one which ought not to have been referred to oath, as the claim was over 1,000 lire. It was held that a prosecution for perjury against B must fail, as the oath was taken in proceedings which were not competent.

La Revue Générale, La Revue Bibliographique Belge, La Revue Sociale Catholique, and La Rivista Politica e Letteraria contain nothing of legal interest, except one or two short reviews of legal works.

JAMES WILLIAMS.

Received too late for notice in this issue :-Baty's International Law in South Africa; Pollock's Law of Partnership; Macpherson's British Enactments in Native States (India), 3 vols.

Other publications received:-Journal of the Society of Comparative Legis lation; Supplement to Indermaur's Manual of Equity; Report of International Maritime Committee; Limitation of Shipowner's Liability and Salvage at Sea; Law of Legislative Power in Canada. By A. H. Lefroy (Canada Law Book Co.); Noble's Completion of Contracts by Mail and Telegraph; Limitation of British Shipowner's Liability (North of England Protecting Association); Register of the Incorporated Law Society.

The Law Magazine and Review receives or exchanges with the following amongst other publications :-Review of Reviews, Juridical Review, Public Opinion, Law Times, Law Journal, Justice of the Peace, Law Quarterly Review, Irish Law Times, Australian Law Times, Speaker, Accountants Journal, North American Review, Canada Law Journal, Canada Law Times, Chicago Legal News, American Law Review, American Law Register, Harvard Law Review, Case and Comment, Green Bag, Virginia Law Register, American Lawyer, Albany Law Journal, Madras Law Journal, Calcutta Weekly Notes, Law Notes, Queensland Law Journal, Law Students' Journal, Westminster Review, Bombay Law Reporter, Medico-Legal Journal, Indian Review, Kathiawar Law Reports, The Lawyer (India), Cape Law Journal.

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Victoria :

QUEEN AND EMPRESS.

Born May 24th, 1819; Died January 22nd, 1901.

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Many daughters have done virtuously, but thou excellest them all."

"Her children arise up, and call her blessed."

Proverbs xxxi., 29 & 28.

GOD REST THE QUEEN !

GOD SAVE THE KING!

THE

LAW MAGAZINE AND REVIEW.

No. CCCXIX.-FEBRUARY, 1901.

I. THE COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT.

THE

HE establishment of the Commonwealth of Australia marks a new epoch in the federation of self-governing States, and also in the development of the resources of the British Empire. The previous federations among English-speaking people-that of the United States of America, and subsequently that of the British Colonies in North America -were both effected under the pressure of necessity. The Colonies of Australia have voluntarily agreed to join together. Their union has been the result of somewhat protracted negotiations, and is embodied in the terms of the Commonwealth of Australia Constitution Act, 1900, which may be regarded as a contract between the different Colonies, to which the British Parliament has given its sanction. As the circumstances which brought about this Act differed from those which conduced to the previous federations already mentioned, so the Act itself differs in some material respects from the Constitution of the United States of America, and from the British North America Act, 1867, which is the Charter of the Dominion of Canada. The leading idea of those who framed the 230 Vict., c. 3.

1 63 & 64, Vict., c. 2.

9

Constitution of the United States was, it has been said, to balance the powers of the Federal Government against those of the different States; that of the framers of the British North America Act was to form a strong federal government to which the Governments of the different Provinces should be subordinate. If such were really the intentions of those who brought about the earlier federations, experience has shown that they failed to use language effectively to carry them out.

Fifteen years ago a permissive Act was passed by the Imperial Parliament to constitute a Federal Council for Australasia, "for the purpose of dealing with such matters of common Australasian interest, in respect to which united action is desirable, as could be dealt with without unduly interfering with the management of the internal affairs of the several colonies by their respective legislatures,"" The Council had legislative authority with respect to certain named matters, either of its own initiation or when they were referred to it by the legislatures of any two or more colonies (s. 15), and it also was empowered to make representations or recommendations to her Majesty with respect to any matters of general Australasian interest, or to the relations of her Majesty's possessions in Australasia with the possessions of foreign powers (s. 29). The colonies affected were not only those on the Continent of Australia, but included Fiji, New Zealand, and Tasmania. This Act was not to come in force in any colony till adopted by its legislature (s. 30), and any colony was at liberty to retire subsequently, if it chose to do so. This Act is now repealed, and its place taken by the wider provisions of the Commonwealth of Australia Constitution Act. New Zealand and Fiji are not included in the remodelled federation, being considered too distant from Australia proper.

148 & 49 Vic., c. 60.

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