It is rather surprising that no one has yet written a history of the English Bar in its modern form. Although much valuable work has been done on the history of the legal profession, particularly in its earlier stages, and although the history of attorneys and solicitors has been written, little is known about the development of barristers as a branch of the profession and their relations with the other branches. The present article can hardly supply this deficiency, which is a very large one, but it may lay open some aspects of the subject in the hope that more research will follow.

ALL those—and they will be many—concerned with the case of Anisminic Ltd. v. Foreign Compensation Commission [1968] 2 Q.B. 862 (C.A.), [1969] 2 W.L.R. 163 (H.L.) will have noticed the references made in the Court of Appeal and in the House of Lords to the judgment delivered by Browne J. at first instance. This judgment is of particular interest and importance, not only because it was upheld by the House of Lords after being reversed by the Court of Appeal, but also because it made an extensive review and analysis of the authorities, which the higher courts to some extent adopted and incorporated by reference. Unfortunately this valuable judgment has not been reported, presumably because it ran to some 40,000 words in length.

There can hardly be any aspect of the law of contract which has in recent years exercised the ingenuity of the courts and the academic lawyers more than the effect of fundamental breach on exemption clauses. The doctrine which seemed to be emerging, that no exemption clause could relieve a party who was in fundamental breach, has been discredited by the House of Lords in Suisse Atlantique, but though the speeches in that case have clarified the position, there is still room for a general statement of the law. The present article is concerned with clear presentation of principle rather than exhaustive examination of authority, whether academic or judicial; and though most of the points have been anticipated at some time or another, it has not seemed desirable to clog the argument by discussing these anticipations. There may also be some value in considering, as aspects of a single problem, some features of the law of contract which are usually discussed in the books under different and widely separated heads such as “Conditions and Warranties,” “Exemption Clauses,” “Discharge by Performance,” and “Discharge by Breach.”

Should the Home Office be liable for damage done by Borstal boys “escaping” from an “open” Borstal? On the other side of the Channel the liability of the state in the case of the near-equivalent “institution publique d'éducation surveillée” has been settled in two exceptionally interesting judgments of the Conseil d'Etat, Thouzellier, 3 February 1956, Rec. 49, and Trouillet, 9 March 1966, Rec. 201, the grounds of which repay study. In England a county court judge had held in 1951 that there was liability (Greenwell v. Prison Commissioners, 101 L.J. 486): the judgment was widely noticed and not appealed against. Now, eighteen years later, in Dorset Yacht Co. Ltd. v. Home Office [1969] 2 W.L.R. 1008 the Home Office, that compulsive defender of prerogative and atavistic privilege, seek to establish as a matter of law that they cannot be liable, however gross the dereliction of duty by the Borstal officers.

One of my famous predecessors, Francis Bacon, once said that the office of Attorney-General was “the painfullest task in the realm.” It fell to another Attorney-General a few centuries later, Sir Patrick Hastings, to say that to be a law officer was to be in hell. I am happy to say that it is only occasionally that I feel like that about it.

Although it became a great office of state, its early history is wrapped in obscurity. The basis of the office appears to have been that as the sovereign could not appear in person in his own courts to plead in any case in which he had an interest, an attorney appeared on his behalf. As early as 1243 one Lawrence Del Brok, a professional attorney, was prosecuting pleas of particular concern to the sovereign. In the year 1247 he was paid a regular fee of £20 a year for “suing the King's affairs of his pleas before him.” As the functions of sovereignty became more complex and more extensive, and acquired a more public character, so the role and duties of the Attorney-General became wider. Already by the end of the thirteenth century the duties attaching to the King's Attorney's office had become burden-some. When Richard de Brettiville performed the duties, a medieval clerk added the postscript at the foot of a list of cases in which the King's Attorney was engaged, “Oh Lord, have pity upon Brettiville.”

In medieval times the political duties which now fall upon the Attorney-General werecompletely absent.

The Law Commission is currently scrutinising the legal liability of manufacturers and sellers of consumer goods under the English law of sale, and it may possibly recommend reform of the existing law to provide greater protection for consumers. A convenient means of assessing the effect and scope of such proposals will be to compare them with the doctrines of current American “products liability law.” These doctrines have subjected sellers of consumer products in America to a strict liability towards their consumers in respect of defective products. This article is intended to be a survey and analysis of the different causes of action provided by American law. It will be necessary to distinguish the different features and origins of each doctrine since the principles of products liability law have been evolved from case to case by the American state courts in a manner which calls to mind the remark of Holmes that “it is the merit of the common law that it decides the cases first and determines the principle afterwards.”

The Perpetuities and Accumulations Act 1964 might have been devised to please examiners. The promise of the Attorney-General to the House of Commons, on the Second Reading of the Bill, that “there will be plenty of caviar for those who have the privilege of attending to these fascinating problems” has proved true, not only for those whom the Attorney-General had in mind, but for students too. Moreover, they have to dissect the statute without hope of assistance from the courts for many years to come; for the fact that the Act applies only to instruments taking effect after 15 July 1964, coupled with the “wait and see” rule, renders (validly) remote the likelihood of judicial decision on some of its more stimulating provisions.

In 1958 there were three houses for sale in Coronation Mews. The first was bought by Mr. and Mrs. A, each providing one-half of the purchase money but the house being conveyed into the name of Mrs. A. The house cost £5,000.