NEW BOOKS AND NEW EDITIONS.

Recollections by John, Viscount Morley, O.M., Honorary Fellow of All Souls College, Oxford. 2 Vols. Toronto: The Macmillan Co. of Canada, Limited: 1917. Pp. 388+382. Price, $7.50.

It would be an evil day for Canada if her lawyers ceased to be general readers. It would be hard to find any other considerable class in the community who could with truth be so described. Therefore we do not hesitate to devote space to the above book which has been sent to us for review. At the same time a well-behaved legal periodical must not give many of its pages to subjects more interesting than law. How then can we in a few pages do justice to the most brilliant and fascinating of modern biographies? Truly we believe we can best do so by making our review largely a catalogue of names: the names of the scholars and philosophers, the statesmen and the authors, whom we meet in its pages in a constant series of intimate pen and ink sketches, personal estimates, and literary and political criticisms. All of them Lord Morley knew, and with most of them was intimate. It is evident that this brilliant man has a genius for friendship, or to use a word of his own, for "comradeship." In the world of philosophy and science he brings before us T. H. Green, Cardinal Newman, Herbert Spencer, Huxley, Carlyle, Bagehot; among men and women of letters we put down his book feeling that we know much better than we ever did before Lord Acton, George Elliot, George Meredith, Cotter Morrison, Mrs. Gaskell, Mathew Arnold, Ruskin, Comte, Victor Hugo, Turgot, George Sand, Charles Reade, Lamartine, and many others; among politicians and men of action he interprets to us with the intimacy of old acquaintance, Mr. Gladstone, Joseph Chamberlain, Arthur Balfour, Henry Campbell Bannerman, Sir W. Vernon Harcourt, Lord Rosebery, John Bright, Lord Minto, Cavour, Theodore Roosevelt, Andrew Carnegie, Mr. Asquith, Sir Edward

Grey. But an example or two may reasonably be expected by our readers. The difficulty is to make a selection. No reviewer of Lord Morley's Recollections need be afraid of spoiling the sale of the book by picking out all the good things. He would have practically to reprint the two volumes in order to do that. But our space is limited. The pages devoted to George Meredith and John Stuart Mill, of whom John Morley, as he then was, became a pretty regular guest at the Blackheath Sunday dinners, at what would now be called the uncanonical hour of five in the early sixties—are among the most fascinating in the first volume, but too long to quote. But take this, after an evening with Carlyle

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'After the grand humorist's despair was over, it was a healthy restorative in passing homeward along the embankment to fling oneself into the arms of any statistician, politician, political economist, sanitary authority, poor-law reformer, prisoner-reformer, drainage enthusiast, or other practical friend of improvement whom genial accident might throw in one's way.'

But this it may be objected tells us more about Lord Morley than about Carlyle. Then take this of Mr. Gladstone-who as Mrs. Gladstone said, talked to Lord Morley in a way he talked to no one else:

His language would not indeed be mine, but the signal truth remains that, when he saw nations stumbling into paths of wrong, he felt sure of moral retribution. He had in his soul a vision high in the heavens of the flash of an uplifted sword and the gleam of the arm of the avenging angel. The thought with which he rose in the morning and went to rest at night was of the universe as a sublime moral theatre, in which an omnipotent Dramaturgist kingdoms and rulers, laws and policies, to exhibit sovereign purposes for good. This was the thought that lighted up the prose of politics with a ray from the diviner mind, and exalted his ephemeral discourse into a sort of visible relation with the counsels

uses

of all time."

Or, take this of Mr. Balfour

I still can find no better parallel to him than Macaulay's account of Halifax: "His understanding was keen, sceptical, in

exhaustibly fertile in distinctions and objects, his taste refined, his sense of the ludicrous exquisite, his temper placid and forgiving, but fastidious, and by no means prone either to malevolence or to enthusiastic admiration."'

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Of course there are numerous illuminating judgments upon books: Mill on Liberty, Mill on Theism, Froude's Erasmus, Herbert Spencer on Justice, Goldwin Smith's Essays on the Irish Question, Miss Lawless' Grania. Again and again crops up Lord Morley's ardent love of the classics. The most beautiful literary passage in the two volumes is perhaps, that in which he devotes eight pages to discussing the Latin poet Lucretius. The tense, defiant, concentrated, scornful, fervid, daring and majestic verse of Lucretius is unique and his own.' And on this discussion Lord Morley hangs much philosophy of his own regarding life and death, or life in relation to death. Of course there are numerous pearls of wisdom to be culled; of course there are many witticisms and good stories. We cannot deal here with the political aspect of the work, which specially characterizes the second volume, as the literary aspect is prominent in the first. Two good stories we will now end with. Under date January 8th, 1886, is the following:

'Went to see Stead in his prison in Holloway for the last time. He was in a strangely exalted mood. "As I was taking my exercise this morning in the prison yard," he said, "I asked myself who was the man of most importance now alive. I could only find one answer-the prisoner in this cell."'

Here is the other:

'A young man once applied to me for work when I was editor of the Pall Mall Gazette. I asked him whether he had any special gift or turn. "Yes," he said, “I think I have a natural turn for invective." 'That's capital," said I, "but in any particular line, may I ask." "Oh, no-general invective." ' 1

Waiver distributed among the Departments Election, Estoppel, Contract, Release, by John S. Ewart, K.C., LL.D., author of Estoppel by Misrepresentation and Other Works. With a foreword by Roscoe Pound, Ph.D., LL.D.: Cambridge: Harvard University Press: London: Humphrey Milford: Oxford University Press: 1917

A legal work by the author of "Ewart on Estoppel" commands, or should command the careful study

We call special attention to the references to Lord Morley's Recollections in our London Letter of this month.

of any member of the profession who pretends or aspires to be more than a man of business. The book now under review will amply repay his attention. Books upon legal subjects nowadays are too often mere compilations of reported decisions; and tend more and more, as reports and decisions multiply, towards the impressive but inflated bulk which results from scissors and paste, rather than the slim symmetry which is attainable only by independent brain work. The small size of Mr. Ewart's book is, in these circumstances, itself a prima facie recommendation of the contents. The expectation thus aroused will not be disappointed.

The book is evidently the product of much original and independent thought. It is true that this does not necessarily indicate merit in a law book. For originality and independence, when applied to legal subjects, often involve either fundamental unsoundness, or a futile attack upon principles and precedents too firmly established to be overthrown. From these defects Mr. Ewart's book is singularly free. It is really an appeal for a return to first principles. But these principles have been so widely departed from, in the supposed interests of "justice," that a return to them may appear at first sight something novel and startling.

Mr. Ewart's central thesis can be shortly stated. There is no such thing, he says, as "waiver." The

word

represents no definite or independent legal concept whatever, except in a sense in which it is now practically obsolete. The idea which the word, as currently used, conveys is always really referable to and completely covered by one or other of four familiar heads-election, estoppel, contract or release. If You cannot bring your case under one of these four you have no case at all. If you can, why confuse, and, as Mr. Ewart shows, often weaken your case by talking of "waiver"? Mr. Ewart concedes, indeed, that the use of the word is not always actually noxious-that is, it is not necessarily incompatible with an actually correct result.

heads,

But it always puts

the user in grave danger of positive error, by making for confusion of thought, and the train of reasoning by which the correct result is reached becomes needlessly strained and circuitous. Moreover, real error does often result; and those who are tempted to think that the word represents merely a harmless lapse from strict scientific terminology may be recommended to consider, in the light of Mr. Ewart's observations, not only a mass of United States cases to which he refers, but the decisions of our own Courts in McGeachie v. North American Life Assurance Co.2

An illustration, taken from a department of the law in which "waiver" has been singularly prominent and has produced much error, will help to elucidate Mr. Ewart's argument, and to show its very practical application. You sue an insurance company for a loss under a policy containing the usual provision that the policy shall be "forfeited and void" upon breach by the insurer of any of its conditions. The company's defence is breach of condition. To this you reply that the company has "waived" the condition or the forfeiture. That is the ordinary course of the pleadings in such an action, and the course of the trial follows that of the pleadings.

But, in allowing the issue to be framed in this way, you have assumed (quite unnecessarily, says Mr. Ewart) the burden of proving two things: (1) words or acts of the company amounting to a "waiver," and (2) authority to bind the company on the part of the person on whose words or acts or statements you rely. It is true that the Courts have gone very far in construing words and acts as "waivers," and in holding that all sorts of obscure persons had authority to "waive" on behalf of the company. In this they have been influenced, no doubt, by a desire to help plaintiffs whose breaches of conditions have been trifling and harmless, and to prevent companies from "maintaining live policies for premium-catching and dead ones for loss-dodging." Not infrequently,

2 22 O. R. 164, 20 A. R. 187, 23 S. C. R. 148.