There were some persons perhaps who on the 4th of December last, when the Queen went in pomp to open the new Law Courts, betook themselves not to the new hall, but to the old. Possibly they had no choice but to put up with the less gorgeous of the two pageants, for they were neither jurors in the Belt case nor otherwise persons of mark. Or it may be they preferred to see the end of an old story—a very old story—to the beginning of a new. For such a choice there was something to be said. They may live to see many noteworthy sights in Mr. Street–s new Courts; they will hardly see another procession of judges in Westminster Hall, and when the procession had passed, they may have felt that they had seen what was worth remembering. Not that there was any excuse for profound emotion, but still something had happened; the curtain had fallen on a scene which began who shall say how long ago? Possibly some readers may be so far like-minded with these spectators, that having seen through the artist–s eye something of the judges as they sit in their new Courts, and being of the sound opinion that a good picture needs no bush of words, they will be willing to throw a glance back on Westminster Hall.

‘The system of forms of action, or the writ system, is the most important characteristic of English medieval law, and it was not abolished until its piecemeal destruction in the nineteenth century.’ Maitland thus reminds us that we have to know a fair amount about forms of action in order to understand the modern law, and as forms of action were based on writs, we must know something about the writ.

The outstanding characteristic of all equitable interests in property is that they do not affect a purchaser who, without notice of their existence, acquires a legal estate in that property in good faith and for value. This rule is of respectable antiquity, and still holds good. As is well known, however, a doctrine of constructive notice was developed by Courts of Equity, whereby purchasers are deemed to have notice of the existence of an equitable interest if they unjustifiably omit to make some enquiry or to inspect some deed which would have revealed it. The consequence of this doctrine was that a purchaser of land, which was subject to equitable interests, was seldom able to say that he purchased without notice of them.

The term ‘illegal contract’ is sanctioned by usage and is adopted in the title of this article for the sake of brevity; but it is not a very satisfactory expression. If a contract is a legal obligation, ‘illegal contract’ is a contradiction in terms. To say that a contract is illegal seems, on the face of it, to be no more than a clumsy way of saying that an agreement is void of legal consequences. There is, however, another possible interpretation of the term ‘illegal contract,’ namely, that it is an agreement the entry into which or the performance of which (on one or both sides) involves a breach of legal duty, or runs counter to morality or public policy. The illegality is not in the obligation, but in the making of the agreement or in the performance of it. It is in this sense that the term is used in the present article, and, so understood, there is no paradox in asking whether an illegal contract can have a legal effect.

Wherever there exists any kind of administration of justice, people will soon realize that a man who makes, or receives, a declaration has to be very careful if he wants to be quite sure of its ultimate legal effect; and the same, of course, is true of all manner of legal business. A man may believe that the promise he is giving has one meaning, but later be told by the judge that it has another; or he may enter into an agreement on the assumption of the existence of certain facts, which afterwards turn out not to be as assumed. There are many ways in which such a discrepancy between verba and voluntas, or letter and spirit, or act and intent, can come about; and a not infrequent one seems to be that the two parties to a contract wish to cheat one another. Very naturally, the temptation to take advantage of a person's lack of forethought must be particularly great in an age when it is permissible to interpret the words of an agreement in a strict and narrow fashion, and when a formal undertaking is considered valid no matter by what trickery you have been led to give it. The Spartan king, Cleomenes, concluded a truce with Argos for thirty days; but he broke it by night, the truce having been made for thirty days. Q. Fabius Labeo, for the Roman senate, arbitrated a boundary dispute between Nola and Naples. He interviewed the parties separately, appealed to their generosity and induced them to make substantial concessions. In the end, there was a large strip of territory left between Nola and Naples, which Labeo awarded to Rome. By the time of Cicero, both these cases were regarded as cases of fraud and as illustrating the maxim summum ius summa iniuria. The history in Roman law of the problem of verba and voluntas has been the subject of much discussion during the past few years. I may, perhaps, be forgiven for drawing attention to a Biblical narrative which is dominated by this problem, though the commentators do not appear to have noticed it. It is the story of the sale of his birthright by Esau.

Some years ago the position of the unborn child in the English law of tort attracted my attention and it is chiefly in connection with that branch of the law that I wish to discuss the topic. But, as almost invariably happens in legal research, I soon found that there were other aspects of the subject which at least deserved passing notice, and at most might be useful for analogy with or distinction from the aspect in tort. It is the old tale of going out to catch a whale and landing several other fish in the process. The three other branches of the law with which I made contact were the law of property, criminal law and the law of contract. I shall touch upon these, but I have no intention of investigating them in detail. There are plenty of books which cover the topic in Property Law and Criminal Law respectively. In the law of contract there is a significant blank. The order of discussion in this article will be:—

I—The law of property.

II—Criminal law.

III—The law of contract.

IV—The law of tort.

In the last issue of this Journal we announced the formation by the Faculty Board of Law of a committee to consider the promotion of research and teaching in criminal science. That the enterprise thus initiated was felt to satisfy a need was proved by the general welcome which was accorded to the committee both here and overseas, and the success which the committee's projects achieved was recognized by the University when it placed the study of this subject in Cambridge on a permanent footing by the establishment in December last of the Department of Criminal Science, by which the original Committee has now been replaced.