There were some persons perhaps who on the 4th of December last, when the Queen went in pomp to open the new Law Courts, betook themselves not to the new hall, but to the old. Possibly they had no choice but to put up with the less gorgeous of the two pageants, for they were neither jurors in the Belt case nor otherwise persons of mark. Or it may be they preferred to see the end of an old story—a very old story—to the beginning of a new. For such a choice there was something to be said. They may live to see many noteworthy sights in Mr. Street–s new Courts; they will hardly see another procession of judges in Westminster Hall, and when the procession had passed, they may have felt that they had seen what was worth remembering. Not that there was any excuse for profound emotion, but still something had happened; the curtain had fallen on a scene which began who shall say how long ago? Possibly some readers may be so far like-minded with these spectators, that having seen through the artist–s eye something of the judges as they sit in their new Courts, and being of the sound opinion that a good picture needs no bush of words, they will be willing to throw a glance back on Westminster Hall.

The recognition of ‘torts’ as a separate and distinct branch of th law is, as things legal go, extremely recent. The first English text-book on the subject (Addison) did not appear until 1860. Since that time, however, the subject of ‘Torts’ has probably received more attention from both legal writers and the Courts than any other subject in the law. This is understandable if one grasps the extremely wide scope of the field involved, and at the same time bears in mind the impact of modern science on the various activities in which men engage in present-day society.

It may seem odd at a crisis like this in the history of the empire and of mankind to be thinking and writing of academic questions of law, but the Editor has asked me to contribute an article to the University of Toronto Law Journal as a token of the sympathy and fellow-feeling of lawyers on both sides of the Atlantic. I am glad to be able to comply with his request and I do so also as a token of appreciation of the noble efforts that Canada is making for the cause which is so dear to the hearts of all of us. What Canada is doing is also being done by the other sister nations of the empire—the great Dominions—the colonies and India. All are united not by material or formal bonds, but by ties of kindred and by a common devotion to the cause of the free spirit and dignity of man, of the supremacy of law over tyranny, treachery, and brute force. The common law which binds together the English-speaking countries has been well called the law of the free peoples. We are confident that the forces of evil are ephemeral compared with that law. We can without impropriety forget for a brief space the pressing evils and dwell a little on that which will survive them, the common law.

In his ‘Common Law’ Mr. Justice Holmes expressed the view (see pp. 300, 301), that a contract is properly to be regarded as the taking of a risk creating a liability to pay damages in a certain event. ‘The only universal consequence of a legally binding promise is, that the law makes the promisor pay damages if the promised event does not come to pass.’ In the Pollock-Holmes'Letters the matter is frequently discussed, and there are various passages from which we can get his views in detail (see vol. i, pp. 21, 119, 177; vol. ii, pp. 55, 200, 234). His position seems to be that liability in Contract is completely analogous to that in Tort. If you commit a tort you are liable to pay damages. If you commit a contract you are liable to pay damages, unless something happens, i.e., performance, over which you may or may not have control (i, 177). It is a conditional liability to pay damages. There is, he holds, no reason to speak of ‘promise’ in the matter at all, in particular, the performance and the payment of damages are not to be thought of as alternative obligations (this in answer to an objection by Pollock).

‘The system of forms of action, or the writ system, is the most important characteristic of English medieval law, and it was not abolished until its piecemeal destruction in the nineteenth century.’ Maitland thus reminds us that we have to know a fair amount about forms of action in order to understand the modern law, and as forms of action were based on writs, we must know something about the writ.

In accepting the honour of writing an article for The Cambridge Law Journal, and in deciding to review some aspects of Canadian constitutional law, I realize that I must assume a good deal of knowledge on the part of my readers, otherwise it would be difficult to know where to begin, where to end, what to say, what to omit. For my immediate purposes it will be sufficient to point out that Canada is a federation of nine provinces created under the British North America Act, 1867, carrying on its executive, legislative, administrative and judicial activities in public and private law under that Act and its amendments and under the great landmarks of English constitutional law in so far as not modified or changed by validly enacted federal or provincial legislation. Legislative powers are divided between the federal and provincial legislatures in such a way as to exhaust the whole field, which is not fenced, as in the constitutional law of the United States, with any constitutional limitations. Granted the legislative power, the manner of its exercise cannot be questioned in the Courts by any arguments drawn from a Bill of Rights, or by the many refinements, moral, political or legal, which flow from ‘the privileges and immunities’ or ‘due process’ clauses of the American constitution. In Canada the doctrine of legislative supremacy prevails. Canadian legislative powers are distributed under the creating Act of 1867. To the provincial legislatures belong certain exclusive enumerated powers under section 92, while, under section 91, the undefined residue belongs to the parliament of the Dominion. For the moment detail is unnecessary. I purpose to view (a) the immediate historical evolution of these legislative powers in order to appreciate (b) the judicial process in relation to them. I shall not concern myself with the minutice of this process, fascinating as they are, but confine myself to certain aspects of it which have become fundamental. I shall conclude (c) with a short view of the treaty-making power, as already it is under further discussion in Canada in the hope of peace ahead. I have specially selected these points of view for a law journal, because federalism and federal law and the judicial process in relation to them are matters of perennial interest and are already in prominence in connexion with the proposed reconstructions of the world. In addition, the judicial process in relation to the British North America Act, 1867, provides an important chapter in the study of stautory interpretation—a subject of equal perennial interest. I refrain from adding anything of a comparative nature, for I have neither the space nor the qualifications to go beyond legal analysis and reach the economic and social life of other federations, without an expert knowledge of which comparative law is of little worth.

The outstanding characteristic of all equitable interests in property is that they do not affect a purchaser who, without notice of their existence, acquires a legal estate in that property in good faith and for value. This rule is of respectable antiquity, and still holds good. As is well known, however, a doctrine of constructive notice was developed by Courts of Equity, whereby purchasers are deemed to have notice of the existence of an equitable interest if they unjustifiably omit to make some enquiry or to inspect some deed which would have revealed it. The consequence of this doctrine was that a purchaser of land, which was subject to equitable interests, was seldom able to say that he purchased without notice of them.

Works of fiction are often valuable as records of contemporary life, and may also be of peculiar interest to lawyers. ‘It is always difficult,’ says Sir William Holdsworth, ‘for a legal historian to reconstruct the atmosphere of the period with which he is dealing.’ Statutes, law reports and legal text-books are insufficient for this purpose because—with certain notable exceptions such as the earlier Year Books and the De Laudibus of Fortescue—they do not tell us much about the manner in which legal business was carried on, nor do they throw much light on the characteristics of judges and practitioners. A wealth of material of this kind is, however, to be found in the writings of our English novelists though only a select few can be relied upon to present a reliable picture of the law as it was in their time. The lay writer who ventures into the domain of the law must necessarily do so at his peril. Trollope was fully alive to this danger when he made the suggestion that ‘writers of fiction should among them keep a barrister in order that they may be set right on such legal points as will arise in their little narratives and thus avoid that exposure of their own ignorance of the law which now, alas! they make.’

All who belong to the small class of persons interested in medieval legal procedure will wish to express their thanks for, and admiration of, the latest contribution made to our knowledge of the subject by the distinguished literary partnership of Mr. H. G. Richardson and Dr. G. O. Sayles. It appears in Volume 60 of the Selden Society publications (dated 1941, but issued last year) entitled, ‘Select Cases of Procedure without Writ under Henry III.’ It is, we are told, an instalment prefatory to another volume which will carry the story beyond the year 1272.

The term ‘illegal contract’ is sanctioned by usage and is adopted in the title of this article for the sake of brevity; but it is not a very satisfactory expression. If a contract is a legal obligation, ‘illegal contract’ is a contradiction in terms. To say that a contract is illegal seems, on the face of it, to be no more than a clumsy way of saying that an agreement is void of legal consequences. There is, however, another possible interpretation of the term ‘illegal contract,’ namely, that it is an agreement the entry into which or the performance of which (on one or both sides) involves a breach of legal duty, or runs counter to morality or public policy. The illegality is not in the obligation, but in the making of the agreement or in the performance of it. It is in this sense that the term is used in the present article, and, so understood, there is no paradox in asking whether an illegal contract can have a legal effect.

In an article in the Canadian Bar Review on the recent case of Bourhill v. Young Dr. Cecil Wright says that this is ‘one of the most important decisions in the law of tort which has appeared since Donoghue v. Stevenson.’ But, as he points out thereafter, it is difficult to determine from the speeches of the law lords exactly what principles it has established concerning the ‘ambit of risk’ or the extent of liability for nervous shock. That this doubt is fully justified is shown by the fact that Professor Winfield in his Text-book of the Law of Tort deals with the case in the section entitled ‘Remoteness of consequence (or damage)’ while Dr. Stallybrass suggests that it is primarily authority on the problem of negligence. Perhaps this difference of opinion reflects a certain degree of uncertainty in the judgments themselves, for their Lordships, although reaching the same conclusion, do not seem to have been in complete agreement concerning the grounds on which they did so.

One of the salient points made in Dr. Radzinowicz's article is that the government publications collectively and inaccurately known as ‘Blue books’ have been almost totally ignored in our histories of Criminal Law. But his point is equally valid with respect to the history of many other branches of the law. One reason for this neglect is the inadequate bibliography of these historical sources. No doubt there has been some improvement in this respect during the last generation, but my own experience in using them has been that, except for the series styled ‘British and Foreign State Papers’ and the Calendars of some ancient state documents, their indexing is very imperfect. Yet the wealth of historical material in them is inexhaustible. What Maitland said of the unprinted sources of legal history might be applied to the publications that have been printed by government authority.

Wherever there exists any kind of administration of justice, people will soon realize that a man who makes, or receives, a declaration has to be very careful if he wants to be quite sure of its ultimate legal effect; and the same, of course, is true of all manner of legal business. A man may believe that the promise he is giving has one meaning, but later be told by the judge that it has another; or he may enter into an agreement on the assumption of the existence of certain facts, which afterwards turn out not to be as assumed. There are many ways in which such a discrepancy between verba and voluntas, or letter and spirit, or act and intent, can come about; and a not infrequent one seems to be that the two parties to a contract wish to cheat one another. Very naturally, the temptation to take advantage of a person's lack of forethought must be particularly great in an age when it is permissible to interpret the words of an agreement in a strict and narrow fashion, and when a formal undertaking is considered valid no matter by what trickery you have been led to give it. The Spartan king, Cleomenes, concluded a truce with Argos for thirty days; but he broke it by night, the truce having been made for thirty days. Q. Fabius Labeo, for the Roman senate, arbitrated a boundary dispute between Nola and Naples. He interviewed the parties separately, appealed to their generosity and induced them to make substantial concessions. In the end, there was a large strip of territory left between Nola and Naples, which Labeo awarded to Rome. By the time of Cicero, both these cases were regarded as cases of fraud and as illustrating the maxim summum ius summa iniuria. The history in Roman law of the problem of verba and voluntas has been the subject of much discussion during the past few years. I may, perhaps, be forgiven for drawing attention to a Biblical narrative which is dominated by this problem, though the commentators do not appear to have noticed it. It is the story of the sale of his birthright by Esau.

In its ordinary form, the warranty of land was an obligation, owed to the tenant of certain land, to defend him in his possession of that land against all men. This obligation to warrant was primarily, therefore, an obligation to come into Court, if called upon (‘vouched’) by the tenant, in order to defend some action brought against him for the possession of that land.

The history of lunacy administration can be traced back with reasonable certainty to 1339, the assumed date of the Statute de Prerogativa Regis, which limited the King's jurisdiction (already existing) over the estates of idiots or natural fools, whose profits he was to take, but for whom he was to find necessaries. For anyone ‘that beforetime hath had his wit and memory’ and should ‘happen to fail of his wit’ or, as would now be said, became a lunatic or of unsound mind, the King was to keep his estate safe and maintain him and his household competently out of the profits, but the King was to take nothing for his own use. By the Statute 32 Hen. VIII, c. 46 (1540), which established the Court of the King's Wards, the residue on the lunatic's death was to be paid over to his Executors or Administrators.

Some years ago the position of the unborn child in the English law of tort attracted my attention and it is chiefly in connection with that branch of the law that I wish to discuss the topic. But, as almost invariably happens in legal research, I soon found that there were other aspects of the subject which at least deserved passing notice, and at most might be useful for analogy with or distinction from the aspect in tort. It is the old tale of going out to catch a whale and landing several other fish in the process. The three other branches of the law with which I made contact were the law of property, criminal law and the law of contract. I shall touch upon these, but I have no intention of investigating them in detail. There are plenty of books which cover the topic in Property Law and Criminal Law respectively. In the law of contract there is a significant blank. The order of discussion in this article will be:—

I—The law of property.

II—Criminal law.

III—The law of contract.

IV—The law of tort.

Though Professor Chafee is best known in this country as an equity lawyer, he has won eminence in the United states as an upholder of civil liberties. His book on Freedom of Speech, which was published in 1920, vigorously denounced the use of war legislation to curb the expression of unpopular left-wing views, and he followed this up in 1928 with a collection of interesting essays called The Inquiring Mind. With two associates he prepared the famous Report on Lawlessness in Law Enforcement for the Wickersham Commission, and in 1932 the Mooney-Billings Report, which is recognized as an authoritative statement of the facts in that cause célèbre. Of the present work he says in the preface: ‘What I have done is to fuse in this book all my ideas past and present on freedom of speech.’