Few laymen know that the expression ‘the pleadings’ in an action denotes the written allegations of fact which each party is required to communicate to his opponent before trial, in order that each may know what contentions he will have to meet, if possible, by evidence, and that an issue, or issues, of fact or of law may emerge. This unexpected meaning comes down in direct descent from the Middle Ages, when opposing counsel strove in Court to extract an issue from the conflicting pleas (placita) submitted by them orally.

Thirteenth century.

During the earlier part of this country proof was formal and the function of the Court was to declare which of the parties must go to proof and how. In certain classes of cases proof by battle was appropriate, in others proof by oath—either the oath of the party, supported by oath-helpers, or the oath of witnesses.

Our English system of Private International Law has for some time past lent itself to accusationsof insularity of conception and stagnation of thought. Dicey's famous work on the Conflict of Laws has threatened to develop into a comfortable niche in which our rules of jurisdiction and the choice of law would be able to dwell in cloistered seclusion undisturbed by criticism from within or by the infiltration of new ideas from without. English legal thought has, undeniably, been dominated for over a hundred years by two text-books. Story's Conflict of Laws reigned supreme until the beginning of this century when it was ousted by Dicey's treatise. Westlake's Private International Law, which in some respects is the most notable contribution which English writers have made to the development of Private International Law, never established itself in a like degree. The somewhat abstruse treatment of the subject by Westlake and his insistence on its comparative aspects involved a departure from current legal tradition which was not wellreceived by the English legal public. Foote's Private International Law which at one time was held in great favour by practitioners was avowedly confined to an analysis of the English casesand as such contained within itself the germs of the obsolescence which has overtaken it. In any event, Dicey's Conflict of Laws was elevated by the Bench and the Bar to a pinnacle of authority which has seldom been attained by a text-book, and the rules in which Dicey stated his propositions have acquired a character which is almost sacrosanct.

Although the judgments in Thomas v. Sawkins occupy less than three and a half pages in the Law Reports, it is a case of peculiar interest and importance. For the first time in English legal history it has been established that police officers are entitled to enter and remain on private premises if they have reasonable grounds for believing that if they are not present an offence or breach of the peace will be committed there. No, case was cited by counsel or in the judgments in which it had been specifically held that the police had this power, and no text-book contains a statement that it exists or has ever existed. Apparently the Home Office was ignorant that this right, obviously so useful to the police, could be exercised by them, for when the Fascist meeting was held at Olympia in London on June 7, 1934, the police, although they had reasonable grounds for believing that breaches of peace would occur, did not enter the hall, because, in spite of their request, the organizer of the meeting refused to admit them. When, a week later, the situation was discussed in Parliament, the Secretary of State for the Home Department, Sir John Gilmour, said:

‘I want the House to understand that the law provides that unless the promoters of a meeting ask the police to be present in the actual meeting, they cannot go in unless they have reason to believe that an actual breach of the peace is being committed in the meeting.’

Actus non facit reum nisi mens sit rea is one of the best-known maxims of our Common Law. It is regarded at the present day as a statement in general terms which indicates the essentials of liability to criminal punishment. The maxim sharply contrasts the conduct of the wrongdoer, i.e. his physical acts or omissions, with the state of his mind at the time, i.e. what he was thinking when he so acted.

At the present day an entailed interest cannot arise in any kind of property unless an appropriate technical phrase (such as ‘in tail’ or ‘and the heirs of his body’) is used by the deed or will which seeks to create the entail. Prior to the Law of Property Act, 1925, entailed interests were impossible in personal property, but could be created in real property either by deed or by will. If created by deed, technical words of limitation were essential. In a will, however, technical phrases were unnecessary, provided that the will showed a sufficiently clear intention to confer an entailed interest upon the devisee.

In all common law crimes, other than common nuisance, it appears that some culpable mental element, or mens rea, is required. The mental element is ‘culpable’ in the sense that the actus is only criminal when it is coupled with a realization of the probable consequences of the act or omission. In statutory offences this rule does not hold good; the actus may be prohibited in such language that a person may be liable for doing an act whether or not he did, or could, have foreseen the consequences. Such offences create what is commonly called Absolute Liability. Unfortunately our judges have used the expression mens rea in different senses. In this paper I use mens rea in its common law sense, and discuss at the end a meaning of mens rea that is now becoming common.