It may be of interest if, after the lapse of fifty years, I record my memories, now dim, of the birth of the Cambridge Law Journal in 1921. Credit for the initiation of the venture belongs to the Committee of the Cambridge University Law Society, an undergraduate club founded in January 1901. In the academic year 1920–21 I was treasurer of the society and the junior officers were A. T. Harries of Emmanuel, R. Branston of Christ's, R. M. Hughes of Downing, and T. Simpson Pedler of Queens'. This group came to see me and propounded the proposal that the society should publish an annual magazine. T. S. Pedler was the most active spokesman, and I have always regarded him as the ultimate founder of the Journal. The original idea of the group was to publish a magazine containing an account of the doings of the society and of other matters relating to the law school in general. My contribution to the venture was to persuade the officers that if the society was to have a magazine it should be a scholarly production edited by a law don and embodying some of the features of the Harvard Law Review.

HenryHollond, who was the Director of Legal Studies at Trinity College, Cambridge, when I came there in the autumn of 1912 after graduating from Yale University, went to the Harvard Law School as a visitor during the academic year 1913 to 1914. When he returned to England in time to join the British Army he said that there were two things at Harvard which had particularly impressed him.

The jurists of the early Principate were divided into two groups, the Proculians and the Sabinians, but the nature of the division has proved to be a perennial problem of Roman legal history. Pomponius tells us that the Proculians regarded Labeo as their founder and the Sabinians Capito, and he gives lists of their respective leaders for more than a century. Furthermore, we know of more than two dozen particular problems which provoked disputes between the two groups. But the sources provide little express evidence as to the underlying opposing principles, if indeed there were any, which were espoused by them. Pomponius says that Labeo and Capito “first made, as it were, two sects: for Ateius Capito held fast to what had been handed down to him, whereas Labeo, a genius, with confidence in his own scholarship, a man who had studied several other branches of knowledge, set out to make many innovations” (D.1.2.2.47). Yet, when the various controversies are considered, the school of Labeo does not seem to champion doctrines which are especially progressive and that of Capito does not seem particularly conservative.

The legal régime of the sea has been a persistently important theme of the law of nations from the beginning; but it has probably never been more dominant than it is at the present time, touching as it does so many of the most vital interests of nations, such as the supply of food and of energy; politically sensitive questions like defence and immigration; and some of the most pressing aspects of pollution and conservation problems. With this renewed importance of the law of the sea have come also new doubts about its content and meaning, and even about the underlying legal principles. Half a century ago, the law of the sea was relatively simple, certain and stable, at any rate in time of peace. The classical dispute between the closed sea and open sea doctrines seemed at last to have been finally resolved on the basis of a kind of dualism by which the coastal state was to have sovereignty over a belt of territorial waters, subject to the general right of innocent passage, and the high seas outside that maritime belt were to be res communis, not subject to acquisition by title of sovereignty, but subject to an international régime which was spelt out in terms of the so-called “freedoms” to be enjoyed by the flags of all nations, the most important being the freedom of navigation and the freedom of fishing.

There is no novelty in the idea that technology presents a continuing challenge to Society in terms of the decisions which must be taken over the use and control of new developments and, indirectly, to the legal system which must acquire and apply the techniques of control desired by Society. However, there is novelty in the sheer pace at which technology is presenting this challenge to international society in relation to the exploitation of the resources of the sea. Within little more than a decade after the great U.N. Geneva Conferences on the Law of the Sea of 1958 and 1960—which introduced substantial codification—a general demand for revision of the law has led to plans for a new Conference on the Law of the Sea in 1973. The scope of the proposed conference is extremely wide and it is the purpose of this article to examine only one of the proposed topics, namely, the “international sea-bed area.” This is a topic which is currently exciting interest throughout the world, in Parliaments, Foreign Offices, Universities, learned societies, conferences, oil companies and even the popular press (the order does not indicate a hierarchy of influence). Behind this interest there lies, of course, money and—possibly a countervailing pressure—the increasing concern with the protection of the maritime environment in addition to the normal considerations of prestige, military security and national interest which condition any State's approach to questions of maritime jurisdiction. In order to appreciate the extent of this interest some brief mention should be made of the resources currently estimated to lie in or on the sea-bed outside national jurisdiction.

(1) Legal Basis

When the first issue of the Cambridge Law Journal appeared in 1921, the English rules of the conflict of laws were those stated and reformulated by Dicey and by the editors of Westlake and Foote. Their progress between 1858 and 1912 had been charted by Dicey himself in a survey published in 1912. The legal basis for the application of foreign law in England was and remained Lord Mansfield's pronouncement in Holman v. Johnson: “Every action here must be tried by the law of England, but the law of England says that in a variety of circumstances … the law of the country where the cause of action arose shall govern.” Dicey never waivered in his adherence to this rule of English law, but he supplemented it with an argument drawn from the doctrine of acquired rights which bedevilled English lawyers for a long time, until in 1949 the editors of the sixth edition of Dicey took what they believed to be a bold, but substantially honest, step by restricting the concept to its proper boundaries and thus by depriving it of its capacity to serve as a general principle of the Conflict of Laws.

Many years after launching Leviathan and towards the end of his life Thomas Hobbes composed A Dialogue between a Philosopher and a Student of the Common Laws of England in which he set out his final thoughts on fundamental matters of law, legislation and sovereignty. This work was published for the first time in 1681, two years after the author's death, and though it represents Hobbes's final thoughts on these questions it has received but slight study compared with his other works. Leviathan and other earlier works must, no doubt, take first place in interest for the political scientist. The Dialogue, on the other hand, is a work of a jurisprudential slant and is as deserving of the attention of lawyers as it has been largely neglected by them. To this neglect there is one important exception. Sir Matthew Hale rejoined in argument to Hobbes's thesis. His argument remained unpublished till modern times, and even the enormous modern literature on Hobbes's writings has generally preserved a silence upon Hale's Reflections. One modern author indeed remarks briefly that “Hale's short treatise is the most brilliant contemporary reply to Hobbes's theory of positive law,” but the remark is not developed. The prevalent opinion may be represented by Holdsworth's view, and this supposes that Hale failed to grasp Hobbes's idea of sovereignty and that Hale's criticism therefore missed its mark. It seems timely to re-examine the received opinion (if Holdsworth's may be so called) for more than one reason.

The law about covenants running with land is once again behind the times. It is undoubtedly in need of statutory reform. It is also, perhaps, an apt subject for this jubilee issue. For among the articles published in the earlier years of this Journal few can be better known, and none can have given more needed help, than Professor Bailey's The Benefit of a Restrictive Covenant, in which the complexities of an excessively intricate topic of real property law were analysed and expounded with great care and clarity. Published in 1938, it remains a source of valuable guidance to-day. In the meantime there have been many decisions, and there are now proposals for legislation. But in the following pages the reader will not find an objective and comprehensive survey comparable to Professor Bailey's. It is proposed to discuss only one or two controversial aspects and the questions of legal policy bound up with them.

“Now what I want is Facts. … Facts alone are wanted in life. Plant nothing else, and root out everything else. … Stick to facts, Sir!” Dickens's Mr. Gradgrind was, perhaps, a county court judge manqué. There is a clear echo of his voice in a story told—and told superbly—by Mr. Justice Mars-Jones of a judge in a rural county court who found himself bemused by a claim to an easement based on the doctrine of lost modern grant. “What's that? What's that?” he declaimed. “A lost grant? That's a very serious matter! Who lost it, and when? Was it your instructing solicitors? Let me see the affidavit of documents. …” And, on being assured that “lost grant” was a matter of legal fiction, demurred with vigour. “Fiction, is it? Fiction!? It's not fictions we want in this court, it's facts!” Whether he had Thomas Gradgrind in mind or not, His Honour was among the prophets, for over the last fifty years facts have largely replaced fictions and, in the law of tort in particular, dogmatic rules of lawyers' law, most of them prohibitory, have been rooted out. It is true that some old plantings survive, and that some strange and undesired off-shoots have appeared, but in general the process has been successful. It has certainly been welcomed by all save a few ageing academics who year by year have lamented the disappearance of much long-cherished and well-cultivated material. It is the removal of the law's negatives, leaving liability in an increasing number of cases to be determined as an issue of fact, that is perhaps the outstanding development in the law of tort since 1921.

At this juncture it is convenient in connection with the older authorities concerned with obtaining money or chattels by false pretences to mention a point of some importance in relation to the Theft Act 1968. That is an Act designed to simplify the law—it uses words in their natural meaning and is to be construed thus to produce sensible results; when that Act is under examination, this Court deprecates attempts to bring into too close consideration the finer distinctions in the civil law as to the precise moment when contractual communications take effect or when property passes.

The jubilee of the Journal happens to coincide with the centenary of Head v. Tattersall, the well-known but troublesome case in which the buyer of a horse was allowed to exercise a contractual right to return it (for failure to answer a warranty that it “had been hunted with the Bicester hounds”), despite the fact that it had been accidentally injured in the meantime and could be restored to the seller only in a damaged state. Most contract textbooks cite this as the classic instance of the condition subsequent, by virtue of which a contract or obligation, although initially effective, ceases to operate on the occurence of a specified event. It is apparent, however, on closer analysis that it was not the contract or any aspect of it which was terminated because the horse failed to meet the warranty, but the buyer's title: in other words, the property in the horse passed to the buyer immediately, but defeasibly, so that when he rejected the horse he divested himself of the title and revested it in the seller. Even this explanation leaves on one side the question of the damage sustained by the horse. In the language of the law of sale, it would be most natural to regard this issue as one of risk, and to say that the court held in effect, and indeed perhaps expressly, that the horse was at the seller's risk during the period allowed for its return.

Fifty years ago the rights of a parent were held in high regard by English law. Since then there has taken place a fairly steady erosion of those rights, so that the picture presented today differs quite markedly from that of the early 1920s.

Why not, we are asked, establish a permanent reconciliation between England and Ireland by the conversion of the United Kingdom into a federalised kingdom whereof England, Scotland, Ireland, and Wales, and, for aught I know, the Channel Islands and the Isle of Man, Shall form separate states? This new constitutional idea of the inherent excellence of federalism is a new faith or delusion which deserves examination.

The past fifty years have seen turbulences in every state, even the most secure hitherto. In a country like Britain, which has remained comparatively stable, it has been easy to preserve the philosophy of analytical positivism in which the science of law is abstracted from social, moral and other value-considerations. Such aloofness is tenable only so long as value-conflicts do not assume large enough proportions to disturb the settled state of affairs, so that one can play at being a jurist as a purely intellectual pastime without overmuch concern as to the direction of social development, since one is comfortably assured of a fairly uniform flow of public opinion. But when tensions begin to convulse the very surface of national life, jurists, let alone judges, are compelled to make conscious decisions as to which way to steer if shipwreck is to be avoided; and the decision to remain positivist then becomes a choice of one of several attitudes, the merits of which invite comparison and question. In keeping with the general surge of unrest, the past fifty years have seen in Britain somewhat of a swing away from positivism and a growing preocupation with values.