The Occupiers' Liability Bill had its second reading in the Commons on March 6, 1957. It is identical with the Bill that was given its second reading in the Lords on June 21, 1956, and, on a number of points, departs substantially from the recommendations of the Law Reform Committee of October, 1954. It is now thought that the Act will be in force (in one form or another) on January 1, 1958. It continues to cast its shadow before it and shadows are notoriously bogy-like. The Report was castigated for encouraging the exhibition of notice boards excluding liability: the Bill has been abused for permitting it. A desire to anticipate the less controversial provisions of the Bill has recently led to some judicial glossing of the differences between the occupancy and activity duties of an occupier. It is time, perhaps, for a brief recapitulation of some aspects of the Bill, in the light of recent decisions.

These notes on thirty-six judges and chancellors, prompted by memory of my own requirements fifty years ago, were prepared for distribution on stencilled sheets to the students attending my lectures on legal history at the Inns of Court. My aim was to provide both indications of the principal achievements of each of the lawyers named, and also references to readily accessible sources of further knowledge.

The editor of this journal has kindly suggested that it would be useful to its readers to have my notes available in print.

It is not nearly as difficult as it used to be for beginners to find out about the great legal figures of the past. Sir William Holdsworth, Vinerian professor at Oxford from 1922 to 1944, placed all lawyers in his debt by his book, Some Makers of English Law, published in 1938. It was based on the Tagore lectures which he had given in Calcutta.

Sir Percy Winfield, Rouse Ball professor at Cambridge from 1926 to 1943, gave detailed information as to the principal law books of the past and their editions in his manual The Chief Sources of English Legal History (1925) based on lectures given at the Harvard Law School. Twenty-four of my judges and chancellors have entries in his book as authors.

By far the most numerous of my references are to Holdsworth's monumental History of English Law, in thirteen volumes, cited as H.E.L. The other works most referred to are The Dictionary of National Biography cited as D.N.B.; Fourteen English Judges (1926) by the first Earl of Birkenhead, L.C. 1919–1922; and The Victorian Chancellors (1908) by J. B. Atlay.

Assuming that a res gesta situation has arisen, it may now be considered what forms the declaration may take. Presumably the declarant will not be held to all those niceties of speech which are exacted from a witness: a declaration will not be excluded because it asserts or denies the very fact to be determined by the court. If in Comm. v. Hackett the deceased had said: “Dan Hackett has murdered me,” it would have been as admissible as his actual statement that Hackett had stabbed him. It is further submitted that the general rule excluding opinion evidence should similarly be relaxed in the case of a statement part of the res gesta. In some cases, an utterance that might have qualified for admission as part of the res gesta has been rejected as opinion. But such a statement seems to have been received in R. v. Palmer, where Fisher was allowed to testify that at Shrewsbury, six days before his death, Cook said to him, about ten minutes after drinking a glass of brandy with Palmer and others, not merely that he had been very sick but also, despite the objection of defence counsel, that “that damned Palmer had dosed him.” The reference to Palmer seems to have been based purely on conjecture. The general rule against opinion evidence is based upon two considerations, first that opinions in so far as they are based upon no evidence are worthless, and second that in so far as they are based upon legal evidence they tend to usurp the function of the tribunal whose province alone it is to draw conclusions of law or fact.

§ 1. Introduction

In the Pipe Rolls for the financial year 1163–1164, Ranulf de Glanvill appears as sheriff of Yorkshire. This was an important office, not to be reached, one may suppose, without previous experience in the King's service, and he continued to hold it for many years. Presumably it was a lucrative office, for it necessarily implied duties far away from Suffolk, the county in which his closest associations lay. His father, Hervey de Glanvill, and his forebears since the conquest of England, had held lands in Suffolk; his own lands lay chiefly in that county; and it is said that he was born there, in the vill of Stratford, during the reign of Henry I.

Glanvill's first period as sheriff of Yorkshire lasted for six years. Then, after an interval of six years, he resumed that office in the year 1175 and retained it until King Richard's accession in 1189.

The purpose of this article is to give an explanation reported by Lord Nottingham about three-quarters of the way through the seventeenth century of the legal reasons justifying the resurrection of equitable estates by way of trusts after the Statute of Uses in 1535 had gone a long distance towards extirpating equitable estates in land. This explanation turns to a large degree on a restrictive interpretation of the first section of the Act, which is as follows—

“That where any person or persons…at any time hereafter shall…be seised, of and in any…hereditaments, to the use confidence or trust of any other person or persons or of any body politic, by…any…means whatsoever,…in every such case all and every such person or persons and bodies politic that…shall have any such use confidence or trust…shall…be…deemed and adjudged in lawful estate seisin and possession of and in the same…hereditaments,…to all intents constructions and purposes in the law, of and in such like estates as they had or shall have in use trust or confidence of or in the same.”

So far as the law of England and Wales is concerned the Homicide Act, 1957, can be divided into two distinct parts. Part I of the Act makes certain reforms in the law of murder whether or not the murder be capital or non-capital. These reforms are important in themselves quite apart from the controversy in relation to the death penalty. Part II of the Act restricts the death penalty as the punishment to be imposed by the courts for the crime of murder to (a) certain kinds of murder defined in section 5 and called capital murder and (b) to murders by a person who has previously been convicted of murder as defined in section 6. For murders not falling within sections 5 and 6 of the Act the sentence “shall be imprisonment for life.”

The law relating to charitable trusts is sadly technical and proverbially obscure. It has failed, it is said, to keep abreast of social developments and has thus attracted widespread criticism.

If an irregularity has been committed in the course of a company's affairs, or some wrong has been done to the company, can the individual shareholder bring a complaint before the court? The Rule in Foss v. Harbottle purports to give a negative answer to this question, subject to certain “exceptions.” The answer need occasion no surprise when it is remembered that the judges have for long been reluctant to interfere in the internal affairs of companies and similar associations; they have usually abdicated their jurisdiction in favour of the obvious alternative authority—the majority of the members. “It is not the business of the court to manage the affairs of the company. That is for the shareholders and the directors.” Whether this approach is a wholly adequate basis for judicial policy in the area of modern company law is open to doubt; the “majority” in the modern public company is usually under the effective control of a small body of managers. But the approach of the courts remains the same; the interests of the majority are theoretically paramount in the last resort. The rights of the minority must, in consequence, be restricted; and, in particular, the minority cannot complain of wrong done to the corporation as a whole or of internal improprietiess. In such terms of deceptive simplicity is the Rule in Foss v. Harbottle often presented; but the Rule is notorious among students of company law for the difficulties which lie underneath this simple surface. In order to investigate those difficulties, it is necessary, first, to examine the two different parts of the Rule and their point of contact; secondly, to mention twe preliminary matters concerning directors which must be kept in mind in the course of the discussion; and thirdly, to set out, and examine under four headings, the principles which are commonly said to constitute the “exceptions” to the Rule.

“The problem of ownership remains but it is not a legal problem; it is the concern of … any and every specialist who can contribute his grain to the common heap … The lawyer naturally has his contribution to make, but as the problem is not fundamentally a legal problem the final solution does not lie with him. He is concerned with ownership only so far as it produces consequences within the sphere of his own special technique.” This article is written to suggest that ownership as a topic of jurisprudence is best regarded not as an isolated concept but as a jurisprudential contribution to the wider problem of the use of things; and that it is an appropriate subject for general jurisprudence since it raises questions which are faced by all legal systems that preserve the notion of private property.