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.

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.

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.’

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.

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’.

According to P. Huvelin the lex Atinia read as follows: Quod subruptum erit, nisi in potestatem eius, cui sub-ruptum est, revertatur, eius rei aeterna auctoritas esto. This reconstruction is no doubt fairly accurate. What, then, is the relation of the lex Atinia to the XII Tables? For, as it appears from the sources, it was already the XII Tables that excluded a res furtiva from usucaption.