In preparing the few and elementary observations which I am about to make to you tonight I have wondered if the title I chose was apt or suitable. The Common Law is generally described as the law of liberty, of freedom and of free peoples. It was a home-made product. In the eighteenth century, foreign lawyers called it an insular and barbarous system; they compared it to their own system of law, developed on the basis of Roman and Civil Law. Many centuries before, and long after Bracton's day, when other civilised European nations ‘received’ the Roman Law, England held back and stood aloof from the Reception. It must have been a near thing. It seems there could have been a Reception here if the Judges had been ecclesiastics, steeped in the Civil Law. But as it turned out they were laymen, and were content as they travelled the country, and in London as well, to adopt what we now know as the Case System, instead of the rules and categories of the Civil Law. Hence the method of threshing out problems by debate in Court, and later on the basis of written pleadings which we find in the Year Books. For present purposes, all I need observe is that the Civil Lawyer had a different idea of the relation of the state or the monarch to the individual from that of the Common Lawyer. To the Civil or Roman Lawyer, the dominant maxim was ‘quod placuit principi legis habet vigorem’; law was the will of the princeps. With this may be compared the rule expressed in Magna Carta in 1215: No freeman, it was there said, was to be taken or imprisoned or exiled or in any way destroyed save by the lawful judgment of his peers and by the law of the land. Whatever the exact application of that phrase in 1215, it became a text for fixing the relations between the subject and the State. Holdsworth quotes from the Year Book of 1441; the law is the highest English inheritance the King hath, for by the law he and all his subjects are ruled. That was the old medieval doctrine that all things are governed by law, either human or divine. That is the old doctrine of the supremacy of the law, which runs through the whole of English history, and which in the seventeenth century won the day against the un-English doctrine of the divine right of Kings and of their autocratic power over the persons and property of their subjects. The more detailed definition of what all that involved took time to work out. I need scarcely refer to the great cases in the eighteenth century in which the Judges asserted the right of subjects to freedom from arbitrary arrest as against the ministers of state and against the validity of a warrant to seize the papers of a person accused of publishing a seditious libel; in particular Leach v. Money (1765) 19 St. Tr. 1001; Entick v. Carrington (1765) 19 St. Tr. 1029; Wilkes v. Halifax (1769) 19 St. Tr. 1406. In this connexion may be noted Fox's Libel Act, 1792, which dealt with procedure, but fixed a substantive right to a trial by jury of the main issue in the cases it referred to.

Cancelli, the diminutive of cancer, means primarily, a lattice or grill, and so secondarily, an enclosure bounded by a barrier of that kind, and thirdly, the duties or office carried on in such an enclosure. Cancellarius naturally means a person associated with cancelli.

The following remarks are intended to show that there exists no irreconcilable conflict between C. Just. 3.32.22 and C. Theod. 4.18.1. This is a strictly limited purpose, and the author does not propose to attempt any further conclusions as to the complicated history of the restoration of fruits in the rei vindicatio. It may be well to quote the two texts that form the subject of this article.

The death of Lord Atkin has deprived our English law schools of one of their staunchest friends, and will be deeply deplored by all who have the cause of legal education at heart. The teaching and the study of the law meant much more to him than a mere preparation for professional life, for the law was ‘all the time the object of his fervent and almost passionate devotion,’ and he was unswerving in his insistence that it should have the place due to it in the studium generale which connotes the unity of knowledge. The full extent of the services which he rendered to legal education will probably never be known, because he was not given to seek publicity for his opinions or his achievements, but it is largely due to his zeal and enthusiasm that our law schools now occupy a very different position from that held by them a quarter of a century ago. His influence made itself felt in two directions. The improvement in the status of law teachers is in no small measure the result of his efforts on their behalf, and he also played a leading part in securing the establishment of closer contact between the academic and practising sides of the law.

Mr. S. J. Bailey's article, ‘The Law of Property Act, 1925, s. 130 (2),’ published in this Journal in 1936 (Vol. 6, p. 67), appears to have attracted no dissent and weighty approbation. The article assailed commonly-held but little-discussed views on the effect of the sub-section, and reached conclusions which have been accepted by authorities such as Professor Cheshire. With a due sense of my temerity I propose to launch a frontal attack on this well-entrenched position.

In 1723 a statute was enacted (9 Geo. I, c. 22) bearing the following title: ‘An Act for the more effectual punishing wicked and evil disposed Persons going armed in Disguise, and doing Injuries and Violences to the Persons and Properties of His Majesty's Subjects, and for the more speedy bringing the Offenders to Justice.’ This statute is commonly known as the Waltham Black Act—a name indicative of the local circumstances which led to its being passed. According to Blackstone, the statute was enacted to stop the depredations which were being committed near Waltham, in Hampshire, by persons in disguise or with their faces blacked; he also observes that the technique of these offenders, who operated in the forests of Waltham, seemed to have been modelled on the criminal activities of the famous band of Roberdsmen, or followers of Robert, or Robin, Hood, who committed great outrages in the reign of Richard the First on the border of England and Scotland. An interesting reference to the Waltham Black Act occurs in Gilbert White's ‘The Natural History and Antiquities of Selborne in the County of Southampton,’ and it is significant that while Blackstone cautiously refrains from expressing any opinion on this statute, White says that it is ‘severe and sanguinary’ and that ‘it comprehends more felonies than any law that ever was framed before.’ Actually, no other single statute passed during the eighteenth century equalled 9 Geo. I, c. 22, in severity, and none appointed the punishment of death in so many cases. The Waltham Black Act may, in fact, be looked upon as a kind of ‘ideological index’ to the large body of laws based on the death penalty which were in force in England at the end of the eighteenth, and the beginning of the nineteenth, centuries. The main features peculiar to this Act reappear, sometimes in a modified form, in almost all the other capital statutes of the period. Thus, an accurate knowledge of the Waltham Black Act is essential if the structure and guiding principles of the capital enactments in general are to be understood; moreover, the fact that the struggle for the repeal of this extraordinary statute was both intense and prolonged, further enhances the symptomatic importance of the Act, which might otherwise seem to be but an obscure enactment designed to meet a purely local emergency.

We have seen that a tenant of land, who had a warrautor, had the right to ‘vouch’ that warrantor if some adverse claimant sued him for the land. Thereupon the warrantor was obliged to defend the action for him and, should the adverse claimant prevail, to compensate him with other land (escambium). Vouching to warranty, however, was not the only procedural device that enabled a third party to intervene and defend an action for land in the thirteenth century. Not infrequently, for example, a defendant would say in Court that, for some reason or another, he ‘cannot answer without A,’ and that he accordingly ‘prays aid’ of A in the action.

It is not always appreciated that before a case is ready for trial, a vast amount of preliminary work has to be carried out. The playgoer who sits before the footlights, sees the actors, and hears them say their parts. He is but dimly conscious of all that has gone before—the playwright toiling at his manuscript, the rehearsals, and the labours of the dresser and the stage carpenter. So a visitor to the Law Courts who sees a judge on the bench provided with all the documents relating to the action, who watches counsel untie the red tape on his brief, and the solicitor produce documents from a dispatch case, is not always alive to the fact that all this has involved a deal of preparation, not only in the office of the solicitor and the chambers of learned counsel, but in the offices of the Supreme Court.