bluuebunny/crossref_metadata_2025_split huggingface dataset:
A Reconsideration of Possessio
Authors: Dias R. W. M. 
Published: January 2009

The literature on possessio has now assumed such proportions that it will require a volume at least to do anything like justice to it. The purpose of this article is only to outline an approach to the Roman law of possessio as suggested by Kocourek's analysis of possession in the common law. The present writer believes that a substantial similarity exists between these two great systems in their approach to possession and this has not been due to any borrowing by the one from the other: a fact which, if proved, should be of no little jurisprudential interest. It is, therefore, merely as a prologue to a fuller exposition elsewhere that the following contentions are advanced as to possessio in Roman law.Kocourek, writing of the common law, maintained that “possession” as a juridical concept distinct from physical control on the one hand and the right to have physical control on the other was unnecessary. If a person actually holds a thing, he either has a right to continue holding it or he has no right; if he is not holding a thing, he either has or has not a right to hold it. In all cases what matters is the right to have physical control. As long as the term “possession” is confined to physical control, no harm is done, but what Kocourek objects to is that mysterious tertium quid, called “possession,” from which are distinguished both physical control and the right to it, the former being known variously as “de facto possession,” “custody,” “detention,” and the latter as the “right to possess.”
Legislative Drafting in London and in Washington
Authors: Dickerson Reed 
Published: January 2009

The meetings of the American Bar Association held in London in 1957 furnished an incidental but valuable opportunity to inquire into the methods of English legislative draftsmanship and to make some useful comparisons with its counterpart in Washington.The first striking fact that emerges in such a comparison is that almost all the public laws enacted by Parliament are drafted by one small group of men, the expert draftsmen of the Office of the Parliamentary Counsel. This is in sharp contrast to the situation in Washington, where legislation is prepared by the Offices of the Legislative Counsel of the House and Senate, by members of the professional staffs of the many standing and special committees of Congress, by the legal staffs of the executive departments and agencies, and even by members of the public. Since this aggregate is very large, the question immediately arises: Why so few and so concentrated in London and why so many and so dispersed in Washington?One obvious explanation would seem to be that the greater size and complexity of the United States must inevitably result in a larger number of, and more difficult, legislative problems, too large for any single drafting group to handle. But even a cursory examination of the recent statute books shows a physical volume of English public laws quite comparable to that appearing during the same period in the Federal Statutes at Large.
Crimes of Violence
Authors: Salmon Justice 
Published: January 2009

I think that we all recognise that the enormous growth in crimes of violence is one of the most disturbing social phenomena of our time. In 1948 there were just over 5,000 such crimes committed in this country. In 1958 there were more than 12,000 such crimes and I understand that the figures are keeping up well in the current year. That means there has been an increase of over 100 per cent. on the 1948 figures. I would observe that in 1938 there were well under 3,000 such crimes; so there is an increase of over 400 per cent, on that figure. How—and this is a very pressing problem—how are we going to control and contract this wave of crime that threatens to engulf us and threatens the life and limb of so many ordinary, decent, law-abiding citizens?There is a school of thought that considers that the reintroduction of corporal punishment is the answer. As you know, corporal punishment was abolished by the Criminal Justice Act of 1948 on the recommendation made by the Cadogan Committee in 1938. It is said that, if we can reintroduce corporal punishment, that will play a large part in overcoming this wave of crimes of violence. There is undoubtedly a very considerable popular clamour in favour of reintroducing corporal punishment. Now, that clamour is, I think, caused by an instinct for revenge. It is not surprising at all that our passion for revenge should be aroused.
New Developments in Mistake of Identity
Authors: Hall J. C. 
Published: January 2009

It was only six years ago that C. J. Slade wrote his memorable article “The Myth of Mistake in the English Law of Contract” in which he placed the whole subject of mistake in a new and agreeable perspective. “Mistake as such,” he declared, “has no operative effect whatever at law.”This was good news for the student; but problems of error in persona still had to be solved, and for these Mr. Slade proposed a simple application of the basic principles of offer and acceptance. The test was whether A's offer was addressed to B and B's acceptance addressed to A, their intention being construed objectively unless that of the one was known to the other, in which case the actual intention of the former determined the matter. The authorities, for the most part, ranged themselves in substantial support, and rationality, it seemed, had been injected at last into this confused branch of the law.This reassurance has now been disturbed by the case of Ingram v. Little, which reminds us that the offer and acceptance test is no magic formula acting as a ready panacea for all the ills caused by error in persona.The facts which gave rise to Ingram v. Little are by now well known. Three ladies who wished to sell their car were offered an acceptable price by a stranger, but they made it plain they would not accept payment by cheque. He then pretended to them that he was a certain P. G. M. Hutchinson and quoted an address which the ladies found to be the one shown beside that person's name in the telephone directory.
The Three Quotations from Homer in Digest 18.1.1.1
Authors: Daube David 
Published: January 2009

In the opening fragment of Digest 18.1, Paul tells us that Sabinus and Cassius had not required a money price in sale. So long as you could distinguish buyer and seller, they had contended, the mere fact that the buyer paid with goods made no difference, but such a permutatio was sale. Sabinus had appealed to the authority of Homer, who says: ‘From there (i.e., from the ships sent by Euneus from Lemnos) the long-haired Achaeans procured wine, some for bronze, some for gleaming iron, some for hides, some for whole cattle and some for slaves’.As these verses do not contain the term ‘sale’ at all, they are generally regarded as pointless; and it is held that all Sabinus can have meant to prove by them was that other things than money might be used for trading—a platitude for which he need not have-searched the ancient books. This, however, is doing him an injustice. As a matter of fact, he knew very well why he adduced just this passage. The word χαλκῷ here rendered as ‘for bronze’ was rendered as ‘aere’ by the Romans. Paul, in the very fragment under discussion, says that the Greeks obtained wine ‘aere ferrohominibusque’ One of the meanings of ‘aes’, as indeed of χαλκóς, was ‘money’. (One may think, for example, of ‘aes alienum’.) It was, therefore, possible to ascribe to χαλκῷ in the passage quoted the sense of ‘for money’, instead of ‘for bronze’. Sabinus translated: ‘They procured wine, some for money, some for gleaming iron,’ etc.
Licences, A Jonah's Gourd (continued)
Authors: Hanbury H. G. 
Published: January 2009

Licence or lease?As formerly a party, who might now find a remedy as a licensee, was left without a remedy because the only resource then known to his counsel was to force the admission of his right into the category of easements, so now, in the light of our present knowledge, a person may, as inErringtonv.Errington, achieve in the character of licensee an object which eluded him as long as he took steps in the wrong direction by asserting an abortive title as lessee. The question, whether an interest is a licence or a lease, is most important, and without some examination of the older cases the modern cases cannot be understood. The oldest case appears to beHallv.Seabright. X sued Y for trespass to his house; Y pleaded that X gave him a licence to occupy until midsummer if he so wished. But the court seems to have been of opinion that the defendant must have had a lease or nothing, and there is no such thing as a lease whose existence depends on the will of one party. Professor Hargreaves cites this case as authority for the familiar proposition, recited at the beginning of this article, that “parties cannot by their mere intention vary the legal consequences of their own acts.” The moral would seem to be that even an abortive lease cannot be interpreted as a licence. He maintains that it was not untilErringtonv.Erringtonthat a person admittedly in exclusive possession of land was denied a legal or equitable title to the land itself, and relegated to the position of licensee, which was elevated for his protection to give him advantages as good as those he would have enjoyed had such a title been attributed to him.
The Concept, the Idea, and The Morality of Law an Essay in Jurisprudence
Authors: King B. E. 
Published: January 2009

IThe title of this essay refers to the titles of three recent works by Professors of Jurisprudence. It is proposed to use these works to illustrate the problem of Jurisprudence in discovering its own appropriate concepts and making sense of its literature.Jurisprudence, it may be assumed, is what Professors of Jurisprudence write. They write it presumably for the edification of students in the Faculties to which they are attached, to help them to see the coherence and the relevance of the more specialised studies in which they are engaged. These Faculties are Faculties of Law. But what is law? The diverse strange and even paradoxical ways in which this question has been answered by serious thinkers, says Professor Hart in his opening paragraph, constitute “a situation not paralleled in any other subject systematically studied as a separate academic discipline.” If we say, then, that Professors of Jurisprudence write about law, our statement may fail to convey any exact or agreed information. Even if it may correctly be assumed that Professors of Jurisprudence use the word ‘law’ to refer to their basic subject-matter, it cannot be assumed that the precise identity of this subject-matter is universally or even generally agreed. Consider some of the identifications of law quoted by Professor Hart—‘ What officials do about disputes is… the law itself’; ‘The prophecies of what the courts will do… are what I mean by the law’; Statutes are ‘sources of Law… not parts of the Law itself’; ‘Constitutional law is positive morality merely’; ‘One shall not steal; if somebody steals he shall be punished… If at all existent, the first norm is contained in the second norm which is the only genuine norm… Law is the primary norm which stipulates the sanction.’
Who Made Notable Contributions to the Development of English Law or its Literature
Authors: Hollond H. A. 
Published: January 2009

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.
Dunn v. The Queen Revisited
Authors: Nettheim Garth 
Published: January 2009

By mid-1973 the Watergate scandal was reaching towards the highest levels of the United States' Administration. Elliot Richardson was nominated as Attorney General with a particular mandate to sort out the affair. The Senate Judiciary Committee, in its hearings on Richardson's nomination, was vitally concerned to ensure that the Office of Watergate Special Prosecutor should have maximum effectiveness and independence. The formula eventually agreed upon was promulgated by the Attorney General as a regulation under powers vested in him by Statute to prescribe regulations for the Justice Department. On the question of independence, it provided:… The Special Prosecutor will carry out these responsibilities with the full support of the Department of Justice, until such time as, in his judgment, he has completed them or until a date mutually agreed upon between the Attorney General and himself. … The Special Prosecutor will not be removed from his duties except for extraordinary improprieties on his part.
Treason in Rhodesia
Authors: Wharam Alan 
Published: January 2009

Throughout the Rhodesian crisis it has been repeatedly asserted that the Unilateral Declaration of Independence constituted treason. In the House of Commons on 12 November 1965, the Attorney-General himself said:It is right that I should point out in general terms that there is abundant authority for the conclusion that the conduct of the kind that has taken place is treasonable.
Francis Moore's Reading on The Statute of Charitable Uses
Authors: Jones Gareth 
Published: January 2009

The reading was an integral part of the education of the medieval law student, and a necessary exercise for the utter barrister who cast covetous eyes to the Bench of his Inn, the Order of the Coif and a judgeship in the Common Pleas or King's Bench. At one time each reader discoursed on one of the “old” statutes before Edward III (especially Magna Carta, Merton, Marlborough, Westminster I, Gloucester and Westminster II) but during the sixteenth century readers acquired a wider range of choice; so Coke and Bacon were to read on the Statute of Uses 1535 and Moore on the Statute of Charitable Uses 1601. The “antient readings” are said to have served the apprentices well, particularly as an introduction to the dark intricacies of medieval land law. Coke esteemed them as having five excellent qualities:First, they declared what the common law was before the making of the statute, as here it appeareth. Secondly, they opened the true sense and meaning of the statute. Thirdly, their cases were briefe, having at the most one poynt of the common law and another upon the statute. Fourthly, plaine and perspicuous, for then the honour of the reader was to excell others in authorities, arguments, and reasons for proofe of his opinion, and for confutation of the objections against it. Fifthly, they read, to suppresse subtill inventions to creepe out of the statute.How more favourable than their modern counterparts, mused Coke, whichhaving lost the said former qualities, have lost also their former authorities: for now the cases are long, obscure, and intricate, full of new conceits, liker rather to riddles than lectures, which when they are opened they vanish away like smoke, and the readers are like to lapwings, who seeme to bee neerest their nests, when they are farthest from them, and all their studie is to find nice evasions out of the statute.
The Liar Paradox in Legal Reasoning
Authors: Hicks J. C. 
Published: January 2009

“All Cretans are liars,” said Epimenides—at first sight a common-place scrap of mild xenophobia; about equal to “Taffy was a Welshman, Taffy was a thief” in charity and acumen. Not, one would suppose, a statement calculated to attract close attention from philosophers or logicians, or (despite the introduction of the offence of incitement to racial hatred) from lawyers.But Epimenides' statement was widely discussed by the best thinkers of classical times and has kept its importance for the foundations of logic until the present century. To understand why, it is necessary to add two facts. First, Epimenides was himself a Cretan. Secondly, his statement was taken to mean not just that all Cretans lied from time to time but that everything ever said by any Cretan was false. It thus implies, in particular, that it is itself false. Not only can this be shown to lead to absurd consequences; it also suggests a simpler form of sentence which heightens the absurdity and best introduces the following discussion. It is: “This statement is false.” If that is true it is false, and if it is false it is true. So we have the paradox of a sentence which breaks no rule of formal grammar, is composed entirely of words whose sense is well understood, combines those words in such a way as to produce an apparently normal and meaningful statement, but turns out on investigation to have something radically wrong with it. We feel inclined to say that it has proved to be “meaningless” or “self-contradictory,” or to involve a “vicious circle.”
The Running of Covenants in Equitable Leases and Equitable Assignments of Legal Leases
Authors: Smith R. J. 
Published: January 2009

It has long been established that covenants in legal leases are enforceable where there is privity of contract or privity of estate. Privity of contract exists where the litigants are the original parties to the lease and where the benefit of the covenant has been assigned. Privity of estate applies where the parties are in the relationship of landlord and tenant. Thus an assignee of the landlord's freehold reversion and an assignee (but not sub-lessee) of the lease are in privity of estate. The traditional view is that privity of estate requires a legal lease. This limits the running of covenants in equitable leases (there will be an equitable lease if the necessity for a deed has been overlooked or if there is merely an agreement for a lease). The principle that an equitable lease does not give rise to privity of estate has several important exceptions. Before these are considered, however, it is expedient to examine the general principle.In recent years the principle has come under attack. The source of the attack emanates from the celebrated dicta of Jessel M.R. in Walsh v. Lonsdale, describing the effect of the Judicature Act 1873:There are not two estate as there were formerly, one estate at common law by reason of the payment of the rent from year to year, and an estate in equity under the agreement. There is only one Court, and the equity rules prevail in it. The tenant holds under an agreement for a lease.
The Assize of Nuisance: Origins of an Action at Common Law
Authors: Loengard Janet 
Published: January 2009

In an imperfect world, imperfect men have never lived in harmony; the consequences have been inevitable, regrettable and, often, productive of legal history. Even the neatest householder, the most peaceable citizen, is sometimes a bad neighbour. He chooses to fiddle when I choose to nap; he permits his dog to howl at midnight; he kindles his back-yard fire where its smoke will choke my back-yard guests. More serious, and more relevant in terms of legal consequences, he manufactures strange and noxious odours which he allows to escape from his premises or he throws waste material into the stream which wanders across his property on its way to my own land. Disregard for the convenience, well-being and property rights of others is not unique to the twentieth century; the under-lying problem of the bad neighbour was well enough known to the twelfth. Then, and long thereafter, one man's mill needed more water to grind efficiently and so he diverted the millstream with only passing regret, if that, for what the diversion might mean to his neighbour's mill downstream. His sheep escaped from pasture and so he raised a hedge across an entry, thereby forcing his neighbour's flock to find a new and less convenient path.Response could always be immediate and forceful; self-help has the virtues of speed, simplicity and cheapness. But unless the creator of the offending mill or hedge was willing to accept his neighbour's response, what was originally an attempt at unilateral solution of a problem could well escalate into a quarrel culminating in violence out of proportion to the issue.
Consideration and the Joint Promisee
Authors: Coote Brian 
Published: January 2009

It is one of the best-known axioms of the common law of contract that consideration must move from the promisee. Expanded, this means that no person can in contract enforce a promise for which he has not provided consideration. As a principle, it has on its side the highest authority and a reasonable degree of antiquity.Ten years ago, however, the High Court of Australia came up with a formula which, while purporting to respect the principle, would, if accepted, have the effect of reducing its impact in a potentially important group of cases. In Coulls v. Bagot's Executor and Trustee Co. Ltd. four of the five High Court judges expressed the view that a joint promisee, if she were party to a contract, could sue to enforce it notwithstanding that she had not herself furnished any part of the consideration. The case concerned a widow whose late husband had contracted to grant a licence to a quarrying company for the extraction of metal from a quarry which the husband owned. Under the contract royalties were to be paid to the husband and wife jointly while they both lived, and there after to the survivor of them. The wife's only part in the proceedings had been to append her signature to the contract document. Barwick C.J. and Windeyer J. (dissenting) held that the plaintiff was a party to the contract and, as a joint promisee, could enforce it notwith-standing that her husband alone had provided the consideration. McTiernan, Taylor and Owen JJ. agreed that if she had been a party the fact that it was her husband who had provided the consideration would not have been an impediment to her.