I have been invited to talk to you tonight about the Court of Appeal in England, its jurisdiction, procedure and practice, and the first point I would make is that, as was recently emphasised by Mr. Justice Romer, there is no such thing as an inherent right of appeal to the Court of Appeal. That court is a creation of statute and its jurisdiction is limited to that conferred on it by statute. As we now know it, it has power ‘to give any judgment and make any order which ought to have been made and to make such further or other order as the nature of the case may require’. One hundred years ago there was no court which had such wide jurisdiction. Indeed, there was, strictly speaking, no Court of Appeal at all.

It may be that historians of the future will regard the present age as distinguished above all things by the system of social security introduced by the series of statutes which included the National Health Service Act, 1946, the National Insurance Act, 1948, and the National Assistance Act, 1948.

The paper I am going to read is a study in comparative jurisprudence. I propose to examine some aspects of Company Law, and especially of the law relating to companies limited by shares. From the many differences existing between French and English Law on this matter, I have selected several points, in the setting up as well as in the management and administration of such companies, which seem typical to me. These are as follows:—

As regards the setting up of companies, I have thought it would be interesting to compare how French and English Law deal with:—

(A) The subscription of share capital;

(B) the prospectus or the other documents designed to serve the same purpose;

(C) the part played by the statutory meeting.

As regards the management and administration, I have chosen to examine:

(D) The powers of directors, and how they are restricted in England according to the doctrine of ultra vires, as compared with the French system of legal personality;

(E) the audit and inspection of companies.

The case of Hislop v. Hislop is a reminder of the special difficulties that may beset a person who attempts to transfer some chose in possession to another person resident in the same household. These difficulties occur where the chattel or collection of chattels in question, which due to size or quantity are not readily susceptible of actual manual delivery, have been used and enjoyed by both grantor and grantee together before the transfer of title and will continue so to be used thereafter. To a bystander the chattels appear to remain in the same situation after as before the transaction, yet ownership or possession or both may have passed with important consequences.

Until recently it was possible to state with some confidence that English courts have no jurisdiction to wind up a foreign unregistered company which, though carrying on business in England through agents or otherwise, has no place of business here. The term “place of business” was given a very extended meaning in the course of time and came to include the premises of a hotel where the directors of the foreign company stayed annually over a number of years for a period lasting from a few weeks to several months, and from which they conducted their business while in England. However, in 1950, Harman J., in Banque des Marchands de Moscou (Koupetschesley) (in liquidation) v. Kindersley, decided that a foreign unregistered company which has assets in England can be wound up by English courts, even if it has no place of business in England otherwise than through agents. The Court of Appeal upheld the decision of Harman J. but Sir Raymond Evershed M.R., in whose judgement the other members of the court concurred, took a different view of the facts. He found that even if the Banque des Marchands de Moscou had no branch or specific place of business in England, it had nevertheless a place of business in England in the extended meaning given to this term by Cohen J. in Rabenek's Case, seeing that one of its directors had transacted business for the bank in England. This reason would have sufficed to dispose of the question whether English courts, in the circumstances, had jurisdiction to wind up the foreign company.

Propositions about law result from thought about law, which is the business of jurisprudence. We shall be concerned with those propositions in which jurisprudence formulates its most general conclusions. Such propositions are expressed in statements or sentences of the general grammatical form ‘Law is “so and so”’, or more briefly, ‘Law is “X”’. By propositions about law we shall mean propositions, statements or sentences in this form. Similarity in form does not, however, necessarily imply similarity of logical function, any more than the use of the same word, ‘law’, is a guarantee that the same ‘thing’ or ‘entity’ is being referred to. Our propositions may in fact have etymological, defining, explanatory and/or emotive functions. To distinguish and to clarify these functions is the purpose of this article.

“There is no such thing known to our procedure as putting half a prisoner's character in issue and leaving out the other half.” This observation fell from Humphreys J. in delivering the judgment of the Court of Criminal Appeal in R. v. Winfield (1939). The purpose of this article is to suggest that at common law this statement is not borne out by principle or by authority. The effect on the common law where the prisoner elects to go into the witness-box in exercise of the statutory opportunity created by the Criminal Evidence Act, 1898, will also be considered. The type of situation that arises is illustrated by Winfield's Case, where the facts, in brief, were that on a charge of indecent assault, W. put in issue his good character for sexual morality, and the prosecution in cross-examination proved his previous convictions for offences involving dishonesty. The court held that such cross-examination was proper. The question is whether the evidence of the good or bad character of the prisoner must be confined to the trait or traits relevant to the type of crime charged. It will be submitted that the evidence must be so confined. On an indictment for murder, evidence of the good or bad character of the prisoner for honesty will be inadmissible. Not only the crime charged but also the circumstances in which it is alleged to have been committed must be considered. If the murder is committed with a hammer, character for peace and quiet on the one hand and for violence on the other will be admissible, but not if it is a case of slow poisoning.

A co-prisoner has never been a competent prosecution witness, save in four exceptional cases:— (i) after a nolle prosequi; (ii) after a plea of guilty; (iii) after an acquittal; (iv) after severance of the trials. Even in the four exceptional cases, it is the practice for the judge to warn the jury against convicting on the uncorroborated evidence of the co-prisoner, if they hold him to be an accomplice. As a defence witness, a prisoner was before the Act of 1898 competent for the defence of a co-prisoner only in the four exceptional cases, but it seems never to have been doubted since the Act that he is competent in all cases. Whether the evidence of the prisoner as a defence witness is evidence against a co-prisoner is a difficult question, but, although there are conflicting authorities, the better view, both in principle and upon authority, seems to be that today a prisoner is a competent defence witness against a co-prisoner in all cases, but the jury should be given the accomplice warning, if they hold him to be an accomplice.

This article is intended to supplement another article, but it is hoped that it may be capable of standing on its own legs. The other article referred to is that entitled “The Concept of a Philosophical Jurisprudence,” by Professor Michael Oakeshott, which appeared in the now extinct journal “Politica” in September and December 1938. The point in that article at which the present article may be appended occurs on p. 350 in the December number (Vol. III, No. 14), where Professor Oakeshott distinguishes two inseparable stages in the process of philosophical inquiry. “First, there is the identification, the mere designation of the subject of enquiry. If we are to determine the meaning of the concept ‘law,’ we must know how to apply the word ‘law.’ And this is to be learnt only by a critical examination of the ways in which the word is ordinarily used. But such an examination leaves us with merely the definition of a word, leaves us merely with the identification of a thing. We have that one thing clearly before us, but we have nothing else; we have the text, but its full meaning is still to seek.” The exploration of this full meaning, of the “context” in which the thing law stands as “text,” is for Professor Oakeshott the second stage in the inquiry which ends with the establishment of a philosophical concept of law—and he has offered guidance of the greatest value to all explorers. This article, however, will be concerned only with the method of obtaining the “text” from which that exploration may begin. It is suggested that it is a particular method of obtaining this “text” which constitutes the distinctive characteristic of a lawyer's jurisprudence.

Classification of Animals

In Roman law all animals are either wild or domestic.

(i) Wild: this category includes particularly those of an innate or natural feritas, and generally all animals not normally owned. Wild animals may, however, be owned and, as will be seen later, the owner may be under legal liability in respect of any damage done by them.

(ii) Domestic: these are normally owned. As a species they do not show feritas, though individually they may. Those which do show feritas are therefore regarded as acting contra naturam (of the species). So a horse which is a kicker, or a bull which gores, both of vicious disposition, are nevertheless governed by the rules relating to domestic animals; and a fortiori the domestic animal which has temporary lapses into feritas, e.g., the mare which is touchy, does not cease to be a domestic animal in law.

The object of this paper is to give a general account of the nature and development of the prerogative writs. Of these writs the best known are habeas corpus ad subjiciendum, to bring up the body of a person imprisoned on a criminal charge or in private detention; certiorari, to review orders and convictions of inferior tribunals and to remove indictments for trial; prohibition, to prevent inferior tribunals from going beyond their jurisdiction; and mandamus, to compel the performance of a public duty. All four are of high constitutional importance, and the last three in particular play a central role in administrative and magisterial law. In the common-law jurisdictions overseas their significance is not less than in England, and in some instances it is even greater because of the more extensive spheres of operation conferred upon them. In England an Act of 1938 replaced the prerogative writs of certiorari, prohibition and mandamus by orders of the same names, but the change of designation reflected only a simplification of procedure; the substantive law remains the same, and for convenience they will here be described as if they were still prerogative writs.

It is not easy for students to see the subject of insanity and the criminal law as a whole. There is virtually no difficulty over what happens in court, for lawyers are concerned with that and it is adequately described in law books, notably in Archbold. But that is only part of the business, the other part being the concern of administrators. There is no mystery about what the officials do or about the reasons for their actions, and the application of intelligence to published material would give the student the right answer. However, a student may not get things right that way, as I remember that I failed to do (though whether by insufficiency of intelligence or of application I cannot say). I learned about these things when as a Home Office official I came to take part in working the system. The purpose of this note is to give students the framework of the subject. The Criminal Justice Act, 1948, has made some changes, and it is convenient to consider first the position before that Act and to begin with a trial on indictment.

The purpose of this article is to consider the legal effects of a transfer of property by A to B subject to the performance by B of some obligation in favour of C, a third party to the transfer. The student of the law of contract is well familiar with the common law rule that no one who was not an original party to the contract is entitled to the benefit of that contract. But this rule creates hardship in particular cases and it has been shown that, in the main, three methods have been evolved to evade those unfortunate results. First, the legislature has intervened and provided C, the third party, with statutory rights. Secondly, the doctrine of agency has been invoked whereby C may claim that he is the principal of B. Thirdly, but with varying success, the trust concept has been pressed into service whereby C has sometimes been able to show that he is a beneficiary.

The argument of the preceding part of this article has progressed as follows. Jurisprudence, it has been contended, is thought about law, including analysis of its internal structure and exploration of its external relations. Only confusion results, however, in the absence of a preliminary indication, with some degree of precision, of the subject-matter to which the term “law” is to be applied. Jurisprudence cannot presuppose, but must begin with, a definition of the term “law.” The distinctive characteristic of a lawyer's jurisprudence is the criterion it adopts in framing such a definition. This, it has been suggested, is utility to lawyers, a specialised professional group whose specific interests and experience differ from those of citizens, politicians, sociologists, philosophers, or whom you will. In particular a lawyer's concept of law should be judged by its power of ordering, conceptually, the elements of the lawyer's professional experience. The best definition will be that whose analysis displays the maximum degree of coherence to be found amongst the largest number of the most important elements in that experience.

In my recent book on the Action on the Case (1951) I advanced the view that the famous Humber Ferryman Case was in the true line of descent of the action on the case. I dealt with it mainly, however, in connection with carriers' liability and a few further remarks may be necessary, in order to explain how far, if at all, my views differ from those put forward in the textbooks. The report in the Book of Assizes may be found translated in Professor Plucknett's treatise and in Mr. Fifoot's book but, as it is brief, it may be worth while beginning with Professor Plucknett's translation, viz.:

“J. de B. complained by bill that G. de F. on a certain day and year at B on Humber undertook to carry his mare, [taken] in his boat, across the water of Humber safe and sound; whereas the said G. overloaded his boat with other horses, by reason of which overloading the mare perished, to his tort and damage.

The note which follows in French was prepared by Monsieur M. Letourneur, a maître des requêtes au Conseil d'Etat and the senior Commissaire du Gouvernement, for my personal information. It is, however, so valuable that it obviously demands publication. But though of an extreme lucidity and precision, it may require, for its understanding by a common law lawyer, a context and an introduction.

This imposing quarto volume is offered to the public as a permanent memorial of the 150th anniversary of the Conseil d'Etat. It is a remarkable book, not unworthy of the very remarkable institution which it seeks to portray.

Although the Conseil, as the Conseil du Roi, goes back a very long way in French history, it suffered an interruption at the French Revolution. The interruption proved indeed to be a minor one, lasting nine years only. Nevertheless, the Conseil was in some sense reformed by Napoleon under the Constitution du 22 Frimaire; and as the Conseil d'Etat it met for the first time on Christmas Day 1799 (a day then disguised as 4 Nivose An VIII) under conditions of no small informality. It is its first meeting under Napoleon which has been selected as the new terminus a quo of an institution in reality a great deal older.

The book consists of some 50 articles (of very unequal length, one of them being an extensive monograph) and is divided into two parts. The second, shorter, part (though of over 200 pages) consists of contributions by persons who are not French and is concerned mainly with the influence of the Conseil d'Etat outside France, though it also includes articles on administrative questions in the United Kingdom (by Prof. W. A. Robson) in the United States, and in Canada (by the Chief Justice of Canada). It is proposed in this review wholly to neglect this part, however great its interest, principally because the English reader will find greater profit in the account given of the functioning in France of the authentic, the French, Conseil d'Etat: which may fairly be called the creator of the only system of administrative law properly meriting that title.