There may be a point in reviewing the controversy occasioned by Lord Justice Devlin's Maccabaean lecture from an American point of vantage. For the Justice's brilliant and original paper has been heatedly attacked as “illiberal.” In the popular sport of classifying all positions on all subjects as either Liberal or Conservative— and the sport is quite as popular in the United States as it is in other countries—there is an intriguing difference between the rules of the game as it is conventionally played on the opposite sides of the Atlantic. In Great Britain, the suggestion that law has a moral content seems to raise theocratic ghosts in many quarters, perhaps in most; and clearly, theocracy is “Conservative.” In the United States, however, it is just the other way around. Every American schoolboy—or at least every American law student—considers Austinian Positivism, and the strict separation of law and morals, to be certain hallmarks of a position labelled “Conservative,” “Rigidly Technical,” “Reactionary,” or worse. And the view of law as an instrument for carrying out the moral purposes of its own tradition, and those of the society it rules, is a familiar touchstone of orthodox “Liberalism.”

When Lord Denning declares that a case decided in 1849 by a lower court is decisive to his mind, as his Lordship did of R. v. Toshack, in delivering judgment in the House of Lords in Welham v. D.P.P. (1960), it goes without saying that his Lordship is satisfied not merely that the old ruling ought to be followed out of deference to the maxim stare decisis, but also that despite the elapse of over a century it has remained appropriate under modern conditions. Yet the unanimous decision of the House of Lords that intent to defraud, the mental element required for forgery of a private document, may exist without an intent to inflict economic loss, is at variance with current academic opinion, expressed over the last decade. Writers had refused to accept the judicial view that there could be an intent to defraud, provided that a course of action was thereby induced, even though the deceit in question was not designed to result in any deprivation of property. The object of this article is to welcome the House of Lords' decision, as in accordance with the historical background of the law of forgery, both in England and in other countries that have been influenced by English principles, and further as based upon good sense. At least one critic is already pleading for legislation to change the decision, but even on this view there is something to be said for an attempt to examine the full implications of a decision that is in the meantime supremely authoritative.

The rules of the substantive law of damages on the one hand and the rules of pleading on the other ought to be kept strictly apart, for although a faulty pleading, if not amended in time, may dcprive a plaintiff of compensation for some part of his damage as effectively as a decision that the damage is too remote, the substantive law can only be rationally considered on the assumption that any case coming under discussion has been properly pleaded. It should follow, therefore, that the distinction between special and general damages is one solely belonging to the rules of pleading. If an item of special damage has been inadequately pleaded. or proved it cannot be recovered, but this is a consequence of failure to comply with those rules. It has no bearing on the substantive law whatever. It does appear, however, that there is at present some confusion as to the nature of the distinction between special and general damages and that this confusion is indirectly affecting the substantive law in certain types of case—notably actions for damages for personal injury.