In November, 1921, Lord Haldane delivered to the Cambridge University Law Society an address on the Judicial Committee of the Privy Council (Cambridge Law Journal, vol. i, p. 143). He was then an ex-Lord Chancellor and for thirty-eight years had had experience of that tribunal-for twelve years as one of its judges. If it seems unnecessary and even unfortunate that the same subject should be given to me, I may point out—though only by way of confession and avoidance—that Lord Haldane on that occasion insisted that ‘You cannot learn much about it from documents’—‘unless you have lived in it and in the atmosphere you do not know what happens there’—‘the only way to study it is to watch it’.

In the year 1908 Professor W. W. Buckland published his book on The Roman Law of Slavery. There existed in England, before that time, no Roman legal studies in the modern sense; and it is no exaggeration to say that it is he qui fundavit ius civile. To-day every scholar in Roman Law or History, whether English or foreign, is acquainted with Buckland's Equity in Roman Law (1911), Elementary Principles of Roman Law (1912), Text-Book of Roman Law (1921, 2nd ed. 1932), Manual of Roman Law (1925, reprinted 1928, new edition to appear 1939), and Main Institutions of Roman Law (1931), and with Buckland and McNair's Roman Law and Common Law (1936).

The student who seeks to discover the essential elements of the crime of Assault at Common Law as distinct from Battery does not receive much help from the standard text-books. Most of them in substance follow the description of assault given by Hawkins: ‘An assault is an attempt or offer, with force and violence, to do a corporal hurt to another.’

The persistent offender occupies, together with the juvenile offender, the central position in criminality, so that every investigation of the genesis and dynamics of his delinquency, and every elaboration of rational methods for curtailing his anti-social activities, must find a place among the fundamental tasks of modern criminology and penal policy. Hence, those provisions of the Criminal Justice Bill, 1938, which deal with the treatment of persistent offenders are undoubtedly of the greatest interest and of particular significance. They are also important because, unlike the other provisions of the Bill, they do not follow the lines set out by the course of evolution hitherto followed but absolutely break with the system established by the Prevention of Crime Act of 1908 (Part II), and they introduce one feature which is entirely new. As nearly all the modern Continental penal legislative systems have also introduced new modes of dealing with persistent offenders, an examination of the English system will be useful for comparative purposes.

The situation which is created when rules of quasi-contract are in conflict has been neglected by English writers and has also received little attention on the Continent. It is possible, no doubt, to explain this lack of interest on the ground that the question is not one which occurs very often in practice. The various Continental rules relating to quasi-contract do not, in substance, differ widely from one another. Further, the somewhat narrow view of quasi-contractual liability hitherto taken by English law has probably discouraged foreign creditors from pressing claims of this type in our Courts.

The English text-book writers have very little to say about conflicts in matters of quasi-contract. Dicey, who devotes only a short note to the question, is chiefly concerned with the problem of ‘classification’ and leaves it, otherwise, very much in the air. He refers in a footnote, without any discussion of its import, to a solitary case and gives no indication as to the rules which should, in his opinion, govern the matter. Westlake treats the question with more respect but with a lack of precision. He does not attempt any analysis of the different states of fact which may give rise to the problem in practice, nor does he discuss in any detail the rules to be applied. He confines himself to the statement that there can be little doubt that the proper law of a quasi-contractual obligation ought generally to be drawn from the place with which the act that occasions it has the most real connexion. Burge's Colonial and Foreign Law contains a somewhat obscure passage dealing with a very recondite aspect of the matter, but is otherwise confined to a short, statement of the views of certain Continental authors. Baty dismisses the question as being ‘comparatively unimportant’ Foote and Cheshire ignore the problem altogether, as also do the editors of the relevant title in the Hailsham edition of Halsbury's Laws of England.

Every approach to the problems of private international law from a comparative point of view must of necessity envisage the differences of basic conceptions between English and Continental law. Quasi-contractual obligations in Continental law are based on a universally recognized principle of natural justice, and if they are often classified as being quasicontractual, this expression is used to distinguish them from obligations arising in contract or tort rather than for the purpose of assimilating them to contract.

In view of the absence of authority an English judge who is called upon to adjudicate in a dispute of a quasi-contractural nature, which contains a foreign element, has, it is submitted, a free hand as regards choice of law. He has it in his power to select one or other of the following tests: —

(A) The domicil either (i) of the party who is impoverished, or (ii) of the party who has been enriched.

(B) The lex loci actus, i.e., either (i) the law of the place in which the unjustifiable enrichment occurs, or (ii) the law of the place in which the transaction takes place which subsequently results in the enrichment.

(C) The proper law of the quasi-contractual obligation ascertained by means of the presumed intention of the parties and by way of analogy to the case of a contract.

(D) The lex fori, i.e., English law.

In the course of the recent revival of the study of Comparative Law, repeated attempts have been made to define the nature and province of this branch of the law. Some writers maintain that Comparative Law represents a method of study rather than a department of legal science. They point to the fact that the technique of comparing different legal systems can be employed in almost every branch of the law and that Comparative Law, unlike the branches of positive law, does not fulfil a definite function in the life of society. In particular, writers on jurisprudence and history such as J. Bryce, Holland and Professor Jenks are inclined to subscribe to this view. Among the jurists who have made a special study of Comparative Law, Professor Gutteridge and Professor Kaden are strongly in favour of this view. Professor Gutteridge says: ‘The comparative method lends itself to the study of any branch of legal learning.’ According to Professor Kaden, it is the province of Comparative Law to disclose the points of agreement and difference in the solution which is provided by several legal systems for the same legal problem. The learned writer denies, however, that it is the function of Comparative Law to found a system of legal abstractions on the results of factual comparison. On the other hand, a number of students of Comparative Law consider their subject as a special branch of the science of law. Professor Saleilles, Professor Lambert and Professor Rabel support this view.

In a recent article under this title, Professor Goodhart has added fresh fuel to a well-known controversy. What is the fundamental attitude of the Courts towards tortious liability?