Looking for a definition of my subject, I find in my learned and lamented friend Professor Dicey's introduction to the second edition of his Law and Public Opinion in England, written in 1914, a sentence which will serve better than any definition of my own. “Since 1859”—the date of Mill's Essay on Liberty—“ almost every event which has happened has diverted public attention to the extreme difficulty, not to say the impossibility, of drawing a rigid distinction between actions which merely concern a man himself and actions which also concern society.” That is a clear statement in untechnical terms of the facts underlying the formal distinction between Public and Private Law, and of the fact that the relations of the two classes of actions and of the rules of law dealing with them have become in our own time, and are still becoming, more and more intimate and complex. It has more than once been observed of late that Public Law is encroaching on Private Law. Perhaps it has not been sufficiently noted that this process by no means obliterates the distinction between them, but on the contrary makes it all the more needful to bear it in mind. Confusion and trouble must arise when private rights arising out of legal or administrative rules established with a primary view to the public weal are treated as if they were matters of merely private interest, and when the framers or administrators of measures designed for the public good ignore the various ways in which private rights will be affected.

The old system of pleading has passed so completely into the limbo of things forgotten that the title of this paper is not intelligible without an explanation. I must, therefore, remind the reader that, in pursuance of the Second Report of the Common Law Procedure Commissioners, which was issued in 1830, the Judges made some new general rules as to pleading in the Hilary Term of 1834 which, on the whole, tended to aggravate the existing evils of the common law system of special pleading, by making special pleading compulsory where it had before been only optional. Something was done to alleviate these evils by the Common Law Procedure Acts of 1852, 1854, and 1860; but they were not wholly eliminated till the new system of procedure and pleading introduced by the Judicature Acts. The result was that right down to the Judicature Acts the system of pleading was the old system; and, subject to the modifications introduced by the Common Law Procedure Acts, the old system aggravated by the new pleading rules of the Hilary Term, 1834. Now it seems to me that there are certain developments in common law doctrine in the nineteenth century which may in part, at least, be traced to the indirect influence of these new pleading rules. But it is obvious that before I can even state my thesis I must explain some of the characteristics of the old system of special pleading, and the effect of these new pleading rules. I shall therefore divide this paper into these three parts, and deal firstly with certain characteristics of the old system of special pleading; secondly, with the new pleading rules of the Hilary Term, 1834; and thirdly, with the question of their effect on the development of the substantive law.

At the beginning of the '70s there were two Maitlands at Trinity. One of them took a first class in Law—the other took a first class in Moral Sciences. The latter was our Maitland, and thereby hangs a tale. It was natural, when in later years he became a distinguished man, for people to look up the academic records, and equally natural for them to fall into the error of supposing that the Maitland who was the distinguished legal historian was the Maitland who “went out” in Law. Even the then editors of the University Calendar fell into the trap, and in the Calendars from 1898 to 1901 there is a note to the name Maitland in the Law Tripos, 1873, describing him as Downing Professor of Law. Other people were misled. Whittaker, of Trinity, whom many of us know to have been an old pupil and intimate friend of Maitland, told me that not long ago he met one of the men who were classed above the Maitland of the Law Tripos. Both being Cambridge men and lawyers they talked, of course, of Cambridge and Law and Maitland. The other man observed, “After all, it will always be a feather in my cap that I once beat Maitland in examination”; and Whittaker had not the heart to undeceive him.

At a joint meeting of the Cambridge University Medical Society and of the Cambridge University Law Society, held on October 28th, 1922, Mr. Travers Humphreys (Senior Counsel to the Treasury) and Dr. G. F. E. Prideaux (of the Ministry of Pensions, F.R.S.M.) debated the following motion: “That in the opinion of this House, the law of England, regarding the criminal responsibility of the alleged insane, is reasonable and fair: and in the interests of justice no alteration is called for”. They have kindly permitted the Cambridge Law Journal to print their speeches in full.