The events which gave rise to the Public Order Act, 1936,1 and the debates in Parliament2 on that subject have drawn attention to the uncertainty concerning the law of public meetings and processions. This uncertainty is due in part to the fact that there is only a limited number of cases directly in point, some of which have not been reported in a satisfactory manner, and in part to an over-simplification in the books of what is an exceedingly complicated matter.

The case of Sinclair v. Brougham has been generally regarded as an authority of first-rate importance. I think it has been properly so regarded, though my reasons for so thinking may not altogether agree with the reasons emphasized by some lawyers. I regard the case as primarily significant as embodying the leading principles on which the Court acts in exercising its equitable jurisdiction to give relief in order to prevent unjust enrichment, or to achieve restitution, if we accept the useful term which has been employed in the recently published American Restatement of the Law of Restitution. The word itself is only an echo of language which will be found in English judgments, indeed, in this very case of Sinclair v. Brougham. The case shows how the Court can do justice by applying equitable principles where the Common Law would have been powerless. But since every Court is now bound in the same proceeding to apply either law or equity or both as the circumstances may require, the distinction between law and equity is now only important in the sense that the differences of method and rules must be observed. In the case we are considering a company had borrowed money for purposes for which it was ultra vires for it to borrow. There could in law be no claim for money lent and no claim in law for the repayment on the ground of quasi-contract or, to use the now obsolete phrase, contract ‘implied in law’, because to allow such a claim as a merely money claim would be to sanction an evasion of the public policy forbidding ultra vires borrowing by companies. Further, as the money lent or its products could not be identified in the company's possessions, a claim in law could not be maintained. But the powers of the Court were not exhausted. The problem was further complicated by the conflicting claims of the shareholders.

Few laymen know that the expression ‘the pleadings’ in an action denotes the written allegations of fact which each party is required to communicate to his opponent before trial, in order that each may know what contentions he will have to meet, if possible, by evidence, and that an issue, or issues, of fact or of law may emerge. This unexpected meaning comes down in direct descent from the Middle Ages, when opposing counsel strove in Court to extract an issue from the conflicting pleas (placita) submitted by them orally.

Thirteenth century.

During the earlier part of this country proof was formal and the function of the Court was to declare which of the parties must go to proof and how. In certain classes of cases proof by battle was appropriate, in others proof by oath—either the oath of the party, supported by oath-helpers, or the oath of witnesses.

Our English system of Private International Law has for some time past lent itself to accusationsof insularity of conception and stagnation of thought. Dicey's famous work on the Conflict of Laws has threatened to develop into a comfortable niche in which our rules of jurisdiction and the choice of law would be able to dwell in cloistered seclusion undisturbed by criticism from within or by the infiltration of new ideas from without. English legal thought has, undeniably, been dominated for over a hundred years by two text-books. Story's Conflict of Laws reigned supreme until the beginning of this century when it was ousted by Dicey's treatise. Westlake's Private International Law, which in some respects is the most notable contribution which English writers have made to the development of Private International Law, never established itself in a like degree. The somewhat abstruse treatment of the subject by Westlake and his insistence on its comparative aspects involved a departure from current legal tradition which was not wellreceived by the English legal public. Foote's Private International Law which at one time was held in great favour by practitioners was avowedly confined to an analysis of the English casesand as such contained within itself the germs of the obsolescence which has overtaken it. In any event, Dicey's Conflict of Laws was elevated by the Bench and the Bar to a pinnacle of authority which has seldom been attained by a text-book, and the rules in which Dicey stated his propositions have acquired a character which is almost sacrosanct.

There are differences between the law of Scotland and the law of England on Defamation which cannot readily be accounted for by any differences in the sources of the two systems. In some chapters of jurisprudence Scots law has derived from the Civil law or the Canon law characteristics which distinguish it from English law. But Scotland has not made substantially larger draughts on these special sources than has England in forming the principles of its law of defamation. Nor can it be said that Stair, who contributed so much to the formation of Scots law, made any marked contribution here. In the one brief passage (Inst. I, ix, 4) in which he treats of defamation he leaves it to be supposed that the law of Scotland, so far as claims for damages for defamation are concerned, and apart from minor differences of procedure, is identical with the law of England. ‘Such actions’, he says, ‘upon injurious words, as they relate to damage in means, are frequent and curious among the English, but with us there is little of it accustomed to be pursued, though we own the same, grounds, and would proceed to the same effects with them, if questioned.’ It sometimes happens that differences between Scots law and English law are to be explained by differences in the history of the Courts and of jurisdiction in the two countries. But this explanation is at first sight of little avail in the chapter of defamation, and some at least of the distinctive differences which will be described must be referred to other causes.

Apart from the passage through Parliament at the end of last year of the Public Order Act, the Courts have in the past few years interpreted police powers on several occasions in the direction of restricting liberty. No excuse is therefore required for examining once again in this Journal a topic, one aspect of which was discussed in the last number. The case of Elias v. Pasmore [1934] 2 K. B. 164 raised important questions as to the right of the police to search premises in the course of making an arrest on a warrant. That case recognized for the first time the validity on such an occasion of a search, which resulted in the discovery of documents (not being documents in the possession of the person named in the warrant) containing evidence of an offence committed by any person, even though the search and seizure were illegal as regards other documents discovered on that occasion. This protection for police action only extends to the actual documents which are evidence of the commission of a crime; but it matters not that the crime is one alleged to have been committed by some one other than the person in the course of arresting whom the search is being made.

According to the general principles of the common law, no man is bound by a contract to which he was not a party. It is true that the personal representatives of a deceased person may be liable upon his contracts after his death, and that covenants contained in a lease may bind assigns of the lease or reversion; but the common law admits no other importanta exceptions to the general rule. Equity, however, evolved an exception of great importance. The decision in Tulk v. Moxhay shows that a negative covenant restricting the user of the covenantor's land may be enforced by injunction against his successors in title; and, when this occurs, the burden of the restrictive covenant ‘ runs with ’ (i.e. is attached to) the land in equity.

Although the judgments in Thomas v. Sawkins occupy less than three and a half pages in the Law Reports, it is a case of peculiar interest and importance. For the first time in English legal history it has been established that police officers are entitled to enter and remain on private premises if they have reasonable grounds for believing that if they are not present an offence or breach of the peace will be committed there. No, case was cited by counsel or in the judgments in which it had been specifically held that the police had this power, and no text-book contains a statement that it exists or has ever existed. Apparently the Home Office was ignorant that this right, obviously so useful to the police, could be exercised by them, for when the Fascist meeting was held at Olympia in London on June 7, 1934, the police, although they had reasonable grounds for believing that breaches of peace would occur, did not enter the hall, because, in spite of their request, the organizer of the meeting refused to admit them. When, a week later, the situation was discussed in Parliament, the Secretary of State for the Home Department, Sir John Gilmour, said:

‘I want the House to understand that the law provides that unless the promoters of a meeting ask the police to be present in the actual meeting, they cannot go in unless they have reason to believe that an actual breach of the peace is being committed in the meeting.’

The passing of the Statute of Westminster, 1931, marked the end of a chapter in inter-Imperial constitutional relations. It was considered by most that, while old conventions must develop and new ones come into being, the legal problems of the Commonwealth had, as far as the Dominions and the mother-country are concerned, been finally solved. The hope has been expressed that ‘the time will soon have passed when the problem of inter-Imperial relations can profitably be discussed as a matter of municipal law’. It is over five years since the passing of the Statute of Westminster and it may not be unprofitable to review briefly inter-Imperial legal constitutional history since the passing of the Statute and to consider how far in the light of it we are justified in regarding as solved the strictly legal problems of inter-Imperial relations.

The above article was written prior to the abdication of King Edward VIII, an event which necessarily involved amendment of the Act of Settlement and therefore called for action by theparliaments of the dominions as recognized by the second recital in the preamble of the Statute of Westminster, 1931. This reads as follows:—

‘ And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Boyal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom.’

Juries are divided into juries of presentment and juries of issue; this paper is concerned with the latter kind, commonly called trial juries. Modern writers are singularly chary of committing themselves to any opinion about juries. The eulogies of Blackstone are definitely unfashionable. The current opinion is perhaps on these lines: jury trial in civil cases is sometimes satisfactory and sometimes most unsatisfactory, and hence the restriction of jury trial has been a wise development; however, there is much to be said for jury trial in criminal cases and (in the past, at least) in cases where the liberty of the subject is concerned. If juries have in the past protected persons against political oppression, and if the conditions under which they did so are still existing or reasonably possible, then we have a point of such importance that it should receive priority in discussion.

Actus non facit reum nisi mens sit rea is one of the best-known maxims of our Common Law. It is regarded at the present day as a statement in general terms which indicates the essentials of liability to criminal punishment. The maxim sharply contrasts the conduct of the wrongdoer, i.e. his physical acts or omissions, with the state of his mind at the time, i.e. what he was thinking when he so acted.

Everybody knows how Rabelais dumbfounded, ere they had yet found time to speak out, those unruly spirits who would not trust his account of the miraculous nativity of the horrific Gargantua. Pourquoy ne le croiriez vous? he exclaimed. Pour ce, dictes vous, qu'il n'y a nulle apparence. Je vous dicz que pour ceste seule cause vous le debvez croire en foy parfaicte. Car les Sorbonistes disent que foy est argument des choses de nulle apparence. Fortunately enough, modern interpolationists have not yet made use of this argument. And it is still possible, there-fore, to put in a word for some good classical texts and concepts which we are asked to regard as the miraculous offspring of the horrific Tribonian.

The recognition of the misdemeanor of Public Mischief has raised the whole issue of whether it is desirable that the judiciary should be in a position to extend the criminal law. The abortive Draft Criminal Code, section 5, provided that all offences should be prosecuted either under the Code or under some other statute, and not at common law. Fitzjames Stephen strongly supported this proposal. The opposing view is that no legislation can foresee all the mischievous acts that may occur, and that it is therefore undesirable to take away from the judges their power of extending common law offences. Any full discussion of this problem requires some consideration of the part played by the judges in building up our criminal law. The purpose of this paper is to examine the main lines of judicial activity in this field.

At the present day an entailed interest cannot arise in any kind of property unless an appropriate technical phrase (such as ‘in tail’ or ‘and the heirs of his body’) is used by the deed or will which seeks to create the entail. Prior to the Law of Property Act, 1925, entailed interests were impossible in personal property, but could be created in real property either by deed or by will. If created by deed, technical words of limitation were essential. In a will, however, technical phrases were unnecessary, provided that the will showed a sufficiently clear intention to confer an entailed interest upon the devisee.

In what are generally known as ‘running-down’ cases, that is to say, actions of negligence by pedestrians against motorists who have caused them injuries, the pedestrian, like every other plaintiff, has to discharge the burden of showing that the accident was due to the negligence of the motorist. This burden is made heavier by the fact that in most cases the pedestrian will have been disabled at the time of the accident from observing accurately the exact circumstances of the case and from enlisting the support of eye-witnesses. This latter disadvantage is a very real one if one takes into consideration the extraordinary reluctance of the average citizen to come forward and testify voluntarily in legal proceedings. The appalling wastage of human life and the suffering caused by road accidents in recent years is reflected in the anxiety of legislators to devise regulations for the protection and safeguarding of all road-users, and pedestrians in particular. The time is apt, therefore, to consider once again the desirability of altering in this class of cases the common law burden of proof of negligence.

In all common law crimes, other than common nuisance, it appears that some culpable mental element, or mens rea, is required. The mental element is ‘culpable’ in the sense that the actus is only criminal when it is coupled with a realization of the probable consequences of the act or omission. In statutory offences this rule does not hold good; the actus may be prohibited in such language that a person may be liable for doing an act whether or not he did, or could, have foreseen the consequences. Such offences create what is commonly called Absolute Liability. Unfortunately our judges have used the expression mens rea in different senses. In this paper I use mens rea in its common law sense, and discuss at the end a meaning of mens rea that is now becoming common.

In December, 1934, the ex-Lord Chancellor asked the Law Revision Committee ‘to consider and report whether and, if so, in what respects the doctrine of consideration requires modification, and in particular to consider among other aspects of and observations upon that doctrine … (b) The rule that a promise to perform an existing duty is no consideration’.