It is sometimes supposed by English lawyers that one of the principal differences between their law and other European legal systems is that the common law is founded on decided cases, whereas systems influenced by Roman law depend on texts and doctrinal literature. Some Civilians might accept the distinction. But the canonist knows that it is hardly accurate. In the first place, his decretals can be regarded both as case-law and as texts. Moreover, once the pope began to commit his adjudicative authority to a court composed of doctors of law, canon law became increasingly the jurisprudence of a learned tribunal. The supreme papal court was the “Audience,” where cases were heard before the auditors of the papal palace (domini auditores sacri palacii apostolici). The pope had appointed auditors of causes since early times, and their procedure had become regularised during the thirteenth century. By the fourteenth century, when these judges were lawyers of distinction from all over Europe, the Court of Audience had become a collegiate body; and under Pope John XXII (1316–34) it was given a written constitution and a settled home. John settled his curia at Avignon, and built a hall of audience alongside his palace there. In 1331 he promulgated the bull Ratio iuris, which was intended to govern for all time what it described as “the highest court established under divine inspiration, where the quality of justice abounds in excellence and brilliance.”

Commentators upon the English common law relating to the protection of trade symbols have frequently remarked the uncertainty concerning the true scope of the action for passing-off: its place in the scheme of English tort law has been said not to have been finally determined, and its capacity for growth not to have been exhausted. It is true that this uncertainty has not prevented greatly increased use of the action in recent years; but this is no reason to be complacent, for the judicial extensions of liability under this head owe more to the manipulation of verbal formulae than to a clarification of its foundations. Inconsequence, as passing-off has come to be employed as the vehicle for novel assertions of right-such as those of groups to a shared symbol, of foreign traders to international reputations that have preceded them to these shores, or of pop stars and other ephemera of our culture to the value of their names and likenxsesses in the marketplace—the risk of important interests being ignored, simply through failing to be recognised, has increased rather than decreased.

If a baby is born alive only to die some time afterwards from pre-natal injury, for what crime is the perpetrator liable? Coke considered that if the injury was caused after quickening by an attempted abortion or by a violent assault upon a pregnant woman, the answer to this question was murder, even if the defendant did not intend or foresee death or serious injury to a fully-born child. The purpose of this article is to evaluate Coke's rule together with the authority in support of it and to consider whether, if it still exists today, it ought to be incorporated in the proposed Criminal Code.