This paper reproduces part of a lecture which I delivered in July to the students attending the special course for foreign lawyers in the University of Cambridge. Its theme was a consideration of Montesquieu's theory of the separation of powers in the British Constitution illustrated by the position of the Lord Chancellor. Being addressed to foreign students, it was largely elementary in character. But some of those who heard it thought that parts of it had a more permanent value. This is an attempt to adapt it so as to render it more suitable for The Cambridge Law Journal.

The defence of common employment has been abolished by the Law Reform (Personal Injuries) Act, 1948 (11 & 12 Geo. 6, c. 41; it came into effect, in general, on June 30, 1948), section 1 of which negatives it as a defence to an employer who is sued by his servant for personal injuries caused by the negligence of a fellow-servant; repeals the Employers' Liability Act, 1880; and makes void any provision in a contract of service or apprenticeship, or in an agreement collateral thereto, which excludes or limits the liability of the employer in respect of personal injuries to the person employed by the negligence of any person in common employment with him. Section 1 does not apply to causes of action accruing before the National Insurance (Industrial Injuries) Act, 1946, came into effect.

It is an established fact that when historical research in Roman Law turned to work on the Justinian compilation with the object of distinguishing in it Classical Law from Byzantine Law, scholars were immediately struck by the profound difference which survives between these two epochs.

In fact, the comparison between private law, such as it still appears in the writings of the late jurists of the Severian period and rescripts of Gordian and Diocletian, and the system of private law applied in the Justinian compilation, shows a profound change, not only in the institutions, but also and above all in the spirit of the system. This system appears influenced by elements and conceptions absolutely unknown to the Classics.

How has it happened? That is the question that scholars put to themselves when the study of the sources permitted, and it made felt the need of a broader survey which would embrace the evolution of Roman Law and which could formulate the manner of this evolution.

At first they had the tendency to attribute all substantial and formal innovations to Justinian's compilers, and consequently, to attribute to the Byzantine Emperor the greatest work of legislation which history records.

It was the time when Bluhme's theory on the formation of the Pandects and on the method followed by the compilers was accepted entirely, and was considered a demonstration of the dominant doctrine.

It was the time when in the work full of life of Hofmann the scholars saw only the most brilliant part, it is true, but also the weakest and the most fanciful, without at the same time perceiving the profound truth conceived by intuition and affirmed with a happy historical sense by this man of genius.

This is a book of unusual merit and interest. The author, Dr. Radzinowicz, a Fellow of Trinity College, Cambridge, is the Assistant Director of Research in Criminal Science in the Cambridge Faculty of Law. It is the first of a series of volumes in which he proposes to set forth the history of our criminal law and its administration from 1750 onwards, and an examination of his sources and his methods indicates that he has set himself a task whose magnitude and complexity would daunt most scholars. As Lord Macmillan, in the Foreword which he contributes as Chairman of the Pilgrim Trust, points out, the author's conception of what is meant by raw materials is staggering. The examination of decided cases and textbooks alone would be formidable, but Dr. Radzinowicz has already had to consult some 1,250 reports of Commissions and Committees of Inquiry, 800 annual reports and 1,100 volumes of Parliamentary Debates.

In the opening fragment of Digest 18.1, Paul tells us that Sabinus and Cassius had not required a money price in sale. So long as you could distinguish buyer and seller, they had contended, the mere fact that the buyer paid with goods made no difference, but such a permutatio was sale. Sabinus had appealed to the authority of Homer, who says: ‘From there (i.e., from the ships sent by Euneus from Lemnos) the long-haired Achaeans procured wine, some for bronze, some for gleaming iron, some for hides, some for whole cattle and some for slaves’.

As these verses do not contain the term ‘sale’ at all, they are generally regarded as pointless; and it is held that all Sabinus can have meant to prove by them was that other things than money might be used for trading—a platitude for which he need not have-searched the ancient books. This, however, is doing him an injustice. As a matter of fact, he knew very well why he adduced just this passage. The word χαλκῷ here rendered as ‘for bronze’ was rendered as ‘aere’ by the Romans. Paul, in the very fragment under discussion, says that the Greeks obtained wine ‘aere ferrohominibusque’ One of the meanings of ‘aes’, as indeed of χαλκóς, was ‘money’. (One may think, for example, of ‘aes alienum’.) It was, therefore, possible to ascribe to χαλκῷ in the passage quoted the sense of ‘for money’, instead of ‘for bronze’. Sabinus translated: ‘They procured wine, some for money, some for gleaming iron,’ etc.

The epithet ‘quasi-judicial’ has become familiar, if not popular, in administrative law. It is commonly used to describe certain kinds of powers wielded by ministers or government departments but subject to a degree of judicial control in the manner of their exercise. Generally speaking, it is applied to powers which can be exercised only when certain facts have been found to exist, and it indicates that these facts must be found in conformity with a code of rules called ‘natural justice’. As a term ‘quasi-judicial’ has for some years been falling into disfavour. ‘I do not like it’, observed a learned judge to whom it had been a source of recurrent difficulty in the well-known series of cases under the Housing Acts. More recently the Master of the Rolls has spoken of ‘what is loosely called a quasi-judicial proceeding—an expression well adapted to mislead unless the context in which it is used is kept closely and accurately in mind’.

The Property Acts of 1925 have restricted in several ways the old equitable doctrine of notice. This article is an attempt to bring together and summarise some of the effects and problems which result from one of the innovations which the Acts introduced to that end.

Section 10 of the Land Charges Act, 1925, enacts that certain ‘charges on, or obligations affecting, land’ may be registered as land charges in His Majesty's Land Registry. Some of these registrable charges have long been recognised as imposing an equitable burden upon the land concerned, and for present purposes we may confine our attention to two of them: (i) estate contracts, (ii) restrictive covenants. By ‘estate contract’, the section means a contract by an estate owner to convey or create a legal estate. By ‘restrictive covenant’ it means a covenant or agreement (not made between a lessor and lessee) restrictive of the user of land.

Both estate contracts and restrictive covenants are registrable if created after the Act came into force. But those which were already in existence before the Act are subject to a distinction: restrictive covenants older than the Act are not registrable—section 10, indeed, so defines a restrictive covenant (for the purposes of the Act) as to exclude them from the Act entirely; estate contracts older than the Act, however, do sometimes become registrable, namely, ‘if acquired under a conveyance’ (i.e., if the person who has the benefit of the estate contract assigns it) after 1925. This distinction, of course, is important and should be borne in mind.

The case of Bowmakers, Ltd. v. Barnet Instruments, Ltd. deserves perhaps more attention than it has received. The judgment, delivered by du Parcq L.J., is per curiam. and of a strong Court of Appeal. It is a broad and easy-flowing judgment which cites few authorities and states a general rule in general terms without enumerating the exceptions to which it adverts. It accordingly gives rise to not a few difficulties. But it may well be correct on the main points which it appears to decide; and it may prove to be generally helpful in principle, upon the difficult topic of property passing under illegal contracts, if the principle involved can be extracted and stated with particularity.

The facts, as determined in the Court of Appeal, are as follows:—

The defendants (appellants), Barnet Instruments, Ltd., were minded to purchase from a Mr. Smith some machine tools; but instead of the defendants purchasing directly from him, in order to facilitate the financing of the transaction, it was arranged, as is customary, that Bowmakers, Ltd., the plaintiffs, should buy the machines from Smith and let them, upon normal hire purchase terms, to the defendants. Accordingly the plaintiffs, having bought from Smith, entered into three separate hire purchase agreements with the defendants: Nos. 1 and 2 of March and April, 1944, concerned new machine tools, No. 3 of June, 1944, dealt solely with a machine tool which was ‘used’. The defendants ‘after making some, but by no means all the agreed payments sold for their own advantage and converted to their use, all the machines except that one which was the subject of agreement 2, and this latter they also converted to their own use by refusing to deliver it up to the plaintiffs on demand’.