This will be a random paper. I would rather give it a title at the end, when I have finished, than at the beginning, before I have started: but if christening must precede development, I will call it ‘Some Reflections on Law and Lawyers’. Though it is well to remember how formidable an essay was in the past concealed under the disarming title of Reflections. In truth, the law seduces men of learning by the variety of its attractions and the specialisation which it encourages may prove, I think, a source of its undoing. We are all experts today; and experts, like kings, may rave, for all that the blows fall thick and fast upon the Achaeans.

This paper reproduces part of a lecture which I delivered in July to the students attending the special course for foreign lawyers in the University of Cambridge. Its theme was a consideration of Montesquieu's theory of the separation of powers in the British Constitution illustrated by the position of the Lord Chancellor. Being addressed to foreign students, it was largely elementary in character. But some of those who heard it thought that parts of it had a more permanent value. This is an attempt to adapt it so as to render it more suitable for The Cambridge Law Journal.

The defence of common employment has been abolished by the Law Reform (Personal Injuries) Act, 1948 (11 & 12 Geo. 6, c. 41; it came into effect, in general, on June 30, 1948), section 1 of which negatives it as a defence to an employer who is sued by his servant for personal injuries caused by the negligence of a fellow-servant; repeals the Employers' Liability Act, 1880; and makes void any provision in a contract of service or apprenticeship, or in an agreement collateral thereto, which excludes or limits the liability of the employer in respect of personal injuries to the person employed by the negligence of any person in common employment with him. Section 1 does not apply to causes of action accruing before the National Insurance (Industrial Injuries) Act, 1946, came into effect.

During the war the publication of the ordinary annual reports from government departments, including the Reports of the Prison Commission and the Criminal Statistics, was suspended as a matter of economy. There have now been published Prison Commission Reports for 1939 to 1946 and Criminal Statistics in an abridged form for 1939 to 1945. A new and most welcome step has been the publication in 1945 of a booklet Prisons and Borstals, described as a ‘statement of policy and practice in the administration of prisons and Borstal Institutions in England and Wales’.

In his Inaugural Lecture as Downing Professor at Cambridge in 1888 F. W. Maitland, after introducing to his hearers certain matters—the variety, classification and enormous mass of Legal Records surviving in England—which were then little appreciated, went on to develop two lines of thought: first, that the wealth of evidence contained in these Records needed, if it was to be utilised, the labour of Scholars trained in the Law; and second, that it was evidence not only for Legal Historians but also, and much more, for other Historians and Students of every kind. The first of these propositions needs a little qualification: indeed Maitland himself would, I am sure, now qualify it, for some of the most enthusiastic and most successful Scholars who have followed in his footsteps have been not Lawyers but Historians. Still it remains true that the first and worst difficulties to be solved are legal ones, obscurities not soluble by any of the ordinary aids to the understanding of ancient Documents in general but arising from points of Law: some of them points which the Historian might puzzle over for hours whereas the Lawyer would solve them in a moment; all of them peculiar to this one great category of Records.

The following judgment was delivered:—

The facts of the cases now before us, which have been consolidated for the purpose of this hearing, fall within a narrow, perhaps too narrow, compass.

The purpose of this article is to consider whether, and if so to what extent, a limitation following one which is void for remoteness is itself void. The subject is one of the most obscure in the rule against perpetuities, and it has always seemed to me that the well-known monographs are at their least satisfactory on this topic-Although I have no desire to revive old controversies, it will not be possible to avoid occasional references to such controversial matters as the rule in Whitby v. Mitchell, the application of the modern rule against perpetuities to legal contingent remainders, and the scope of the cy-près doctrine.

It is an established fact that when historical research in Roman Law turned to work on the Justinian compilation with the object of distinguishing in it Classical Law from Byzantine Law, scholars were immediately struck by the profound difference which survives between these two epochs.

In fact, the comparison between private law, such as it still appears in the writings of the late jurists of the Severian period and rescripts of Gordian and Diocletian, and the system of private law applied in the Justinian compilation, shows a profound change, not only in the institutions, but also and above all in the spirit of the system. This system appears influenced by elements and conceptions absolutely unknown to the Classics.

How has it happened? That is the question that scholars put to themselves when the study of the sources permitted, and it made felt the need of a broader survey which would embrace the evolution of Roman Law and which could formulate the manner of this evolution.

At first they had the tendency to attribute all substantial and formal innovations to Justinian's compilers, and consequently, to attribute to the Byzantine Emperor the greatest work of legislation which history records.

It was the time when Bluhme's theory on the formation of the Pandects and on the method followed by the compilers was accepted entirely, and was considered a demonstration of the dominant doctrine.

It was the time when in the work full of life of Hofmann the scholars saw only the most brilliant part, it is true, but also the weakest and the most fanciful, without at the same time perceiving the profound truth conceived by intuition and affirmed with a happy historical sense by this man of genius.

This is a book of unusual merit and interest. The author, Dr. Radzinowicz, a Fellow of Trinity College, Cambridge, is the Assistant Director of Research in Criminal Science in the Cambridge Faculty of Law. It is the first of a series of volumes in which he proposes to set forth the history of our criminal law and its administration from 1750 onwards, and an examination of his sources and his methods indicates that he has set himself a task whose magnitude and complexity would daunt most scholars. As Lord Macmillan, in the Foreword which he contributes as Chairman of the Pilgrim Trust, points out, the author's conception of what is meant by raw materials is staggering. The examination of decided cases and textbooks alone would be formidable, but Dr. Radzinowicz has already had to consult some 1,250 reports of Commissions and Committees of Inquiry, 800 annual reports and 1,100 volumes of Parliamentary Debates.

… It is my purpose today to attempt to deal with one or two elementary matters which may, I think, cause preliminary difficulty to a person endeavouring to study and compare civil procedure in France and in England.

In the last number of the Cambridge Law Journal Professor Lauterpacht made the decision in R. v. Joyce the occasion of a lucid discussion of the topics of allegiance and protection, including the correlation of allegiance and protection, the diplomatic protection of non-nationals and the duty of allegiance of protected persons. He came out in support of the decision in Joyce, though he was cautious in assessing its implications outside the actual facts of the case. Since the argument for the decision has been put so fully it is perhaps as well that the legal aspect of the case for the other side should also be stated, particularly as it does not completely appear from the judgments and speeches.

Javolenus libro undecimo epistularum. Cum venderem fundum, convenit ut, donec pecunia omnis persolveretur, certa mercede emptor fundum conductum haberet: an soluta pecunia merces accepta fieri debeat? respondit: bona fides exigit ut quod convenit fiat: sed non amplius praestat is venditori quam pro portione eius temporis quo pecunia numerata non esset.

In the opening fragment of Digest 18.1, Paul tells us that Sabinus and Cassius had not required a money price in sale. So long as you could distinguish buyer and seller, they had contended, the mere fact that the buyer paid with goods made no difference, but such a permutatio was sale. Sabinus had appealed to the authority of Homer, who says: ‘From there (i.e., from the ships sent by Euneus from Lemnos) the long-haired Achaeans procured wine, some for bronze, some for gleaming iron, some for hides, some for whole cattle and some for slaves’.

As these verses do not contain the term ‘sale’ at all, they are generally regarded as pointless; and it is held that all Sabinus can have meant to prove by them was that other things than money might be used for trading—a platitude for which he need not have-searched the ancient books. This, however, is doing him an injustice. As a matter of fact, he knew very well why he adduced just this passage. The word χαλκῷ here rendered as ‘for bronze’ was rendered as ‘aere’ by the Romans. Paul, in the very fragment under discussion, says that the Greeks obtained wine ‘aere ferrohominibusque’ One of the meanings of ‘aes’, as indeed of χαλκóς, was ‘money’. (One may think, for example, of ‘aes alienum’.) It was, therefore, possible to ascribe to χαλκῷ in the passage quoted the sense of ‘for money’, instead of ‘for bronze’. Sabinus translated: ‘They procured wine, some for money, some for gleaming iron,’ etc.

‘ … It is certain’, says Winfield, in writing of the liability for torts committed by servants of corporations, ‘that, whatever the law may be where the corporation has expressly authorised the commission of an ultra vires tort, no authority to the servant or agent to commit such a tort can be implied’ : and he illustrates his point by the well-known case of Poulton v. L. & S. W. Ry. Poulton, in terms of an arrangement which he had made with the railway company, was entitled to free carriage of a horse. At the end of the journey the local stationmaster demanded payment for the carriage of the horse; Poulton refused to pay, and the stationmaster detained him. The Court of Appeal held that the railway company was empowered to detain goods, but not persons, for non-payment of carriage; that accordingly they had no power to detain Poulton, even on the assumption that he had wrongfully taken the horse by train without paying; that there could be no authority for the arrest implied to the stationmaster; and that his employers were not liable for his tortious act.

The Countess Gundred was an occasional litigant in the Curia Regis Rolls of Richard I and John. She was evidently an important person. Other women are described in the rolls as the wife or widow or daughter of someone: she is simply ‘Comitissa Gundreda’ (ComitisGund) without more. She was probably the daughter of Roger, Earl of Warwick, and was perhaps a great granddaughter of William the Conqueror. Her first husband was Hugh Bigod, first Earl of Norfolk; her second was Roger de Glanvill, brother of the Justiciar.

Twenty years ago Mr. Cairns set himself the task of looking at law from three points of view, that of the social sciences, that of logic and the empirical sciences, and that of philosophy. Law and the Social Sciences was published in 1935, the Theory of Legal Science in 1941. The volume under review completes the trilogy. The object of all these volumes is the same—‘To construct the foundation of a theory of law which is the necessary antecedeat of a possible jurisprudence’. All those who have come under the spell of Mr. Cairns' stimulating thought will look forward with the greatest interest to the application and expansion of his conclusions which is now promised us in a projected final work, The Elements of Legal Theory.