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.

My first duty is to apologise for the delay which has caused me deliberately to wait until this relatively late date after my return to Cambridge a year ago before I felt able to deliver this inaugural lecture. For six years the locusts of war ate into my all too limited learning in the law, and involved a loss of all contact with academic life which made advisable a period of recovery—not yet completed—before I plucked up courage to say what I want to say to-day—in all too scanty words. I did, however, in the course of last year, address some informal remarks to the Cambridge University Law Society—and I take this opportunity of thanking their Officers for the invitation—on which occasion I put forward some considerations which seemed to justify the conclusion that the effect of the late war had been to stress the importance of public law.

William styles was tried at the Oxbridge Assizes on charges of murder and arson. The evidence for the prosecution showed that Styles was the owner and manager of a shop with extensive storerooms, and that at 10 p.m. on the 21st June, Styles deliberately set fire to the building in order to claim the insurance money. John Doe, a storekeeper employed by Styles, was burned to death. No evidence was produced as to why Doe was in the building at that hour. The staff usually left at 6 p.m. though it was not unknown for members to stay later, although no instance of anyone staying as late as 10 p.m. could be adduced. Styles did not search the building before he set it on fire.

No satisfactory definition of Dominium in Roman Law has yet been achieved. Amongst English writers Austin many years ago found great difficulty in this question while in modern times Professor Buckland has written ‘it is thus difficult to define Dominium precisely.’ Again, Poste, dealing with Gaius' discussion of dominium, says that his opening statements are ‘deplorably confused.’ These examples are enough to indicate the condition, of uncertainty which prevails. In my submission this uncertainty exists mainly because the conception of ususfructus has never yet been explained adequately. Of Possessio it has been said ‘the definition of Possessio to give the results outlined is a matter of great difficulty. No perfectly correct solution may be possible,’ and this statement is generally accepted as a correct assessment of the present position in juristic literature. But here, too, in my opinion, the reason is again connected with usufruct, for the possessio of the usufructuary has not yet been adequately determined. Gaius (2.93) tells us ‘usufructuarius vero usucapere non potest; primuum quod non possidet, sed habet ius utendi et fruendi.’ Ulpian holds that he had possessio in fact (‘Naturaliter videtur possidere is qui usum fructum habet’ D.41.2.12). On this subject Roby says ‘the fructuary was not strictly a possessor and therefore if he was deprived from enjoying he had not a claim to the original interdict de vi but in virtue of his quasi-possessio a special interdict was granted him.’ Austin saw difficulty in the whole problem of possessio. He wrote ‘by Savigny in his treatise on possessio it is remarked that the possessio of a right of usufruct … resembles the possessio of a thing, by the proprietor, or by an adverse possessor exercising rights of property over the thing. And that a disturbance of the one possession resembles the disturbance of the other. Now this must happen for the reason I have already stated:—namely, that the right of usufruct or user, like that of property, is indefinite in point of user. For what is possession (meaning legal possession not mere physical handling of the subject) but the exercise of a right ?’

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 summary is based on notes compiled, like the common place books of old, for personal use. As the Editor was so good as to express the opinion that such a thing would be useful to the readers of this journal I have prepared it for publication.

The hall was full of little creatures of all sorts. There was a Mouse, a Duck, a Dodo, a Lory, an Eaglet, and a jet-black Rook wearing a clerical collar.

‘“I,” said the Rook,

“With my little book”’—

murmured Alice to herself.

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 cause célèbre of King v. William Joyce, subsequently reported as Joyce v. Director of Public Prosecutions, was concerned to a large extent with matters of interest for international law, and it is mainly from this point of view that it is proposed to discuss it in the present article. Obviously the case is also of considerable importance both for criminal law, in so far as it is concerned with the crime of treason, and for constitutional law inasmuch as it bears directly on the question of the nature and the obligations of allegiance. However, it is probable that the case books which will claim it most insistently will be those of international law. For the decision in Rex v. Joyce is not only an authority on certain aspects of allegiance owed by aliens and of the right of a State to assume jurisdiction over acts committed by aliens abroad. It sheds light on such questions as the nature of diplomatic protection of citizens, the right of a State to protect diplomatically persons who are not its citizens, the obligation of allegiance of so-called protected persons, and some others. Not all these questions were judicially answered, but they loomed large in argument and imparted to the proceedings the complexion of a case concerned predominantly with international law. In view of this it may be pertinent to preface this article by drawing attention to a point which appears to be a mere matter of terminology but which, it is believed, raises an issue of wider significance.

Before 1926, entailed interests could exist in real property but were impossible in personal property. In order to create an entailed interest in real property, strict words of limitation (e.g., ‘in tail’ or ‘and the heirs of his body’) were essential except in the case of gifts by will. In a will, certain informal phrases, such as ‘and his issue,’ were sufficient. This situation was altered by section 130 of the Law of Property Act, 1925, whereby (a) even personal property may now be entailed, (b) strict words of limitation are now essential in every case.

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.

It was not until 1898 that the rule that the House of Lords is absolutely bound by its own judgments was finally established in London, Street Tramways Co., Ltd. v. London County Council. The justification for this rule was stated by Lord Halsbury L.C. in these words: ‘What is that occasional interference with what is perhaps abstract justice as compared with the inconvenience—the disastrous inconvenience—of having each question subject to being reargued and the dealings of man-kind rendered doubtful by reason of different decisions, so that in truth and in fact there would be no real final Court of Appeal?’ It is strange that the Lord Chancellor did not refer to the fact that although the Judicial Committee of the Privy Council is, for constitutional reasons, not absolutely bound by its own judgments, nevertheless no ‘disastrous inconvenience’ has followed from this. In practice the Judicial Committee follows its own prior judgments unless they are clearly wrong, but it does so on the ground of reason rather than on that of absolute authority.

The series to which the four volumes that are the subject of this article belong began in 1928, and appeared regularly until their production was held up by the recent war. The publication of the 1940 volume was delayed until 1943. Within the last year, activities have been renewed with such success that the volumes for 1942, 1943, 1944 and 1945 have been forwarded to us. The Foreword of Dean Arthur T. Vanderbilt gives impressive imformation about the magnitude of the task. He tells us that in 1942 American reported decisions filled seventy-four books totalling 76,362 pages, and that, although the sittings of most of the legislatures were suspended in that year, enactments nevertheless occupied 8,939 pages. Thus, great as is the burden on the editors of our Annual Survey of English Law (which Dean Vanderbilt courteously mentions as the source of inspiration of the American Annual Survey), it is light compared with that upon the shoulders of those who have to deal with legislation and judicial decisions in over fifty jurisdictions. The aim of each volume of the American Survey is modestly described as merely to present in orderly fashion the significant trends in the more important branches of the law through the year.' This underrates the scope of the work, for it is gratifying to both practitioners and teachers of law to find included in it chapters on ‘Jurisprudence,’ ‘Legal Education, Bar Organization and Economics,’ and ‘Administration of Justice—The Courts and Law Reform.’ Moreover, account is also taken of outstanding literature in the shape of textbooks and articles in law journals.

The reign of Richard I offers certain advantages to those who would A study the land law of that time. Glanvill's De Legibus shows the law as it stood immediately before the reign began; and, five years later, the earliest surviving rolls of the Curia Regis show the King's Justices applying it. These rolls have been printed and so are easily available. They carry the story from the summer of thé year 1194 to the end of the century and beyond. Unfortunately, however, they present certain difficulties. In those days, a plea of land before the King's Justices was ordinarily a lengthy matter, extended by essoins and adjournments over several terms or even years. And when one attempts to trace such a plea to its substantial hearing or to judgment one often fails. Perhaps the roll of the crucial term is missing, or the Justices have adjourned the case from Westminster into the Eyre—whereof few records survive. Perhaps the official scribe has so spelled or altered or contracted the names of the parties as to defy recognition; or the case may have ended prematurely by the death of a party or by some compromise not discoverable among the Feet of Fines. Meanwhile, moreover, one is conscious that these records of the law administered by the King's Justices tell us little or nothing of Shire Court and Court Baron, wherein much of the litigation still lay.

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.