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Title: Lycurgus
or The future of law
Author: E. S. P. Haynes
Release date: October 10, 2024 [eBook #74553]
Language: English
Original publication: New York: E. P. Dutton & Company
Credits: Produced by Donald Cummings and the Online Distributed Proofreading Team at https://www.pgdp.net (This book was produced from images made available by the HathiTrust Digital Library.)
*** START OF THE PROJECT GUTENBERG EBOOK LYCURGUS ***
LYCURGUS
LYCURGUS
OR
The Future of Law
BY
E. S. P. HAYNES
_Author of “Divorce as it Might Be,” “The
Enemies of Liberty,” etc._
[Illustration]
NEW YORK
E. P. DUTTON & COMPANY
681 FIFTH AVENUE
Copyright, 1926
By E. P. DUTTON & COMPANY
_All Rights Reserved_
PRINTED IN THE UNITED STATES OF AMERICA
To
_ARTHUR MALCOLM LATTER
one of His Majesty’s Counsel_
PREFACE
Lawyers are supposed to be more interested in the past than in the
future and to resent lay criticism. Yet most lawyers would find
the contemplation of existing anomalies intolerable if there were
no prospect of any future remedy, and so far as lay criticism is
concerned, it is almost invariably the lawyers who want reforms and
are hopelessly obstructed by stupidity and indolence in the House of
Commons. If the laity were really interested in legal reform the world
would be a happier place.
In the last twenty years I have come across a large number of judges,
barristers, and solicitors who have spent endless time and trouble
in trying to improve our marriage and divorce laws without receiving
any aid or gratitude from the public, and even an incomparable jurist
and versatile scholar like Sir Frederick Pollock has never spared any
effort to remove hardship with which he may not have been brought so
closely in contact as less learned men.
I mention all this because my motive in writing the following remarks
is to stimulate the interest of the laity in the law. The law offers
a fine intellectual discipline and moral training to its students.
Its standard of honesty is far higher than the ordinary commercial
standard and it teaches men and women how to think, as distinct from
cramming miscellaneous facts into their heads without any guiding
principle. Medieval men and women who had any education at all were far
better educated than the newspaper reader of to-day. They were often
bilingual and usually understood theology, if not law, and therefore
comprehended logic and the rules of reasoning far better than the
ordinary voter of our own time.
Professor Jowett once said that logic was “neither a science nor an art
but a dodge,” and that is rather the attitude of the man in the street
to law. I hope that any reader of this book who may be induced to look
into some of the points I have mentioned will feel this attitude to be
as Philistine and unworthy as Jowett’s other observation that “Ici on
parle français” was the real inscription over the gates of Hell.
CONTENTS
PAGE
INTRODUCTORY 1
I. LEGISLATION 8
II. THE LAW COURTS 12
III. CORPORATIONS 18
IV. THE CRIMINAL LAW 22
V. FAMILY LAW 28
VI. THE LAND LAWS 39
VII. COSTS AND FUSION 45
VIII. PRIVATE INTERNATIONAL LAW 66
IX. INDIVIDUAL LIBERTY 78
LYCURGUS
INTRODUCTORY
The title of this book connotes limitation, for it is obviously
impossible to attempt a prophecy about law in all parts of the world,
even though “prophecy is the most gratuitous form of error.” I shall
confine myself in the main to law in English-speaking countries, for
the countries which have adopted Roman Law――_i.e._, Scotland and most
European countries――are not likely to change it very much. English
law has largely influenced the world through English Colonies and
even through South America, where Bentham drafted more than one
constitution. Bacon drafted the constitution of Virginia, which has
been the model of the average American State. Even the present writer
has been unofficially consulted about a Federal divorce law for the
United States.
The future of law in every State depends very much on political
developments. If democracy proceeds on its present lines all law is
likely to be brought into contempt. Law is brought into contempt in
many ways but usually as follows:――
(1) Bad drafting of statutes as in the case of the Rent Restriction
Acts, the ambiguity of which necessitates incessant litigation and
conflicting decisions.
(2) Absence of principle or indolence in applying it. Thus Professor
Dicey wrote:――“English Law might be made lucid, and would be in the
main good, if we had no statutes. It is not only or perhaps mainly
that Statutes are ill-drawn ... but that English judges are incapable
of recognizing a principle when once it is put into the form of an Act
of Parliament.” The Married Women Property Act of 1882 might have been
drawn in two clauses; the result of this clumsy Statute is that more
than forty years afterwards a man is held liable for his wife’s torts,
while on the other hand the Partnership Act, 1890, remains as a model
of lucidity and saves much litigation.
(3) The abuse of legislation by faddists who try to intrude into
matters which are sacred to the individual. I need only refer to
Prohibition in the United States as an obvious example of anarchy
created by futile and hypocritical legislation.
(4) Palpable anomalies such as the Divorce Law of England and Wales
which embodies a timid compromise between common sense and theological
doctrines not seriously accepted by 50 per cent. of the community.
(5) Uncertainty and delay, which have to some extent been remedied for
well-to-do suitors but exist to-day for most poor persons.
All these tendencies exist to-day under what is called democracy. In
Canada and the United States we see movable property (_e.g._, bearer
bonds) taxed on the death of the owner not in accordance with his
domicil but in accordance with the physical situation of the property
itself. In Victoria (Australia) the test of residence is substituted
for that of domicil in divorce. There are also other anomalies
resulting in what is known as “double income tax.” The operation of the
law is also made uncertain by the Executive interfering with justice,
as appeared when the first Labour Ministry in Great Britain jockeyed
with the legal discretion of its own Attorney General.
There is also a general impatience with the complexity of human
business, which has to be put into the strait waistcoat of the law
before Justice can be achieved, and a tendency to dragoon citizens
when it is easier to employ force than to determine their rights. Such
tendencies result in Statutes like the Trades Disputes Act, 1906, and
in setting up bureaucratic bodies like the Ministry of Health as judges
in their own cause in their own courts.
There are, however, some reassuring factors to-day. State Socialism
is as dead as a doornail and other forms of Socialism are not likely
to buttress up bureaucracy. The small investor and the landowner
are waking up to the advantages of private ownership and individual
enterprise. Objectionable clauses against liberty in the Wireless
Bill and Criminal Justice Bill have been hotly opposed. There is
also a better diffusion of educational facilities and a perceptible
reaction against what Mr. Belloc calls the “Servile State.” I shall,
therefore, presume to make my forecast on the assumption that the world
is learning some kind of wisdom and will in the near future reform its
laws in accordance with common sense, even if it does not reach the
standard laid down by Dr. Johnson when he said:――“The Law is the last
result of human wisdom acting on human experience for the benefit of
the public.”
I should, perhaps, claim some indulgence from lawyers who may think
my remarks unduly sketchy or incomplete. I am working within a small
compass and writing more for the layman than for the lawyer. It is not,
therefore, easy to treat my subject very fully or comprehensively.
I
LEGISLATION
In all legislation, as in litigation, there is a struggle between the
issue and the process. The layman wants to simplify the law, the lawyer
wants to simplify the facts. Anyone who reads the French code will
think French Law simple; if he hears a French lawsuit he will find that
the code has always to be interpreted in the light of past litigation,
though French decisions are not authoritative in the same sense as ours.
The House of Commons in considering a bill is often quite as ignorant
of the subject matter with which it deals as of the legal antecedents
of the Bill. The ordinary citizen may sometimes sit on a jury; but he
does not administer the law in rotation as the Athenian did in the days
of Pericles. Therefore legislation is often retarded and complicated by
appeals to ignorant prejudice as well as by considerations of partisan
expediency and illogical compromise. The experts rarely have the
same chance as they had in drafting the Partnership Act, 1890, which
summarized and boiled down a multitude of decisions.
Even if Parliament cannot be trusted to legislate very coherently,
there ought to be a department of State (_e.g._, a Ministry of Justice)
engaged in perpetually clarifying the case law and different statutes
of, say, the last preceding twenty-five years in order to introduce
some coherence and simplicity into our Statutes. This, however, will
not easily be accomplished unless the practice of allowing bureaucrats
to draft their own rules and sit in their own courts as judges in their
own cause be abolished.
Many complaints have been made against the Common Law of England owing
to the labour of digging up old cases and reconciling them with the
particular subject matter to which they are to be applied; but the
legal tangles of our time are worse than the old and are mainly due to
the difficulty of interpreting statutes which are obscurely drafted and
ambiguously worded.
If these statutes often puzzle the judges who have to administer
them it is not fair to the layman to say to him:――“_Ignorantia legis
neminem excusat._” It may, therefore, be fairly presumed that future
Parliaments will employ the most expert draftsmen they can find to
eliminate all the defects that now import chaos, and therefore hardship
and expense, into the community.
II
THE LAW COURTS
I shall not deal fully with the Law Courts as such in this chapter
but only with the obvious tendencies of our day towards the
decentralization and specialization of justice. It is said that justice
must be brought to the poor man’s door; therefore the County Courts
should have divorce jurisdiction in addition to other powers. Judges
should sometimes have more than a general knowledge of the subject
matter which comes before them; therefore a Commercial Court was
set up in 1895 and a special judge is appointed to sit in it. Some
litigants, however, in commercial as well as other disputes prefer
to appoint expert arbitrators who rely for legal guidance on their
personal experience of law and on the eminent counsel practising before
them. Supporters of this movement towards specialization quote with
approval the very fair decisions of Courts Martial or the Law Society’s
Discipline Committee, while pointing out the comical blunders of the
Chancery division judges when they were sent on circuit shortly after
the Judicature Act of 1873.
The Commercial Court has certainly done very good work in its thirty
years of existence. It helps on the assimilation of laws in different
countries on such subjects as bills of exchange, and it would be more
important if there were more trade and if the practising Counsel’s
clerks demanded less enormous fees. These two drawbacks should surely
be remedied in the future and this Court is not likely to be replaced
by any big international court working on Admiralty lines.
The Admiralty Court has acquired remarkable prestige because nowadays
foreigners more and more often refer marine disputes by consent to its
jurisdiction, and it looks as if the Admiralty Law of England might
soon spread all over the world like the Roman _Jus Gentium_. Even the
Germans handsomely acknowledge the scrupulous equity of the English
Courts as between a British subject and alien.
How far divorce work can be properly specialized I shall discuss
in a later chapter. The trend of present opinion is to resent the
limitation of matrimonial causes to special judges because
(1) This principle of limitation is rooted in the old idea that only
ecclesiastical lawyers can properly deal with the institution of
marriage and
(2) The admission of the principle is the main obstacle to the
decentralization of divorce.
The ordinary Englishman still has the Athenian ideal of public duties
being performed by ordinary citizens in rotation. He likes trial by
jury and looks kindly on the patriotic efforts of an unpaid Magistracy.
The work of the expert and professional is often unexpectedly
illuminated by the criticism of the amateur. The liberal humanism
of the first Lord Gorell, of Lord Birkenhead, and of Mr. Justice
Swift――to name only three men of Liverpool――has blown away many ancient
quasi-ecclesiastical cobwebs of the Divorce Court. The ancient wisdom
of the Common Law has often efficiently protected the liberties of
Great Britain from the tyranny of king, baron, and bureaucrat.
The same revolt against what is conceived to be legal pedantry emerges
in the undiscriminating support that Lord Birkenhead received in
carrying the Law of Real Property Act through Parliament. But for
the hatred of the Statute of Uses with which he infected the mind of
our legislators, the necessary reforms could have been made simpler
and better. The probable result will be the compulsory registration
of title to land in preference to the less cumbrous system of
Conveyancing inaugurated in 1882. Much the same conflict emerges in
the controversy whether the legal profession should remain divided
into barristers and solicitors. I think that this division will remain
because it corresponds to a real division of labour; but with this I
will deal later.
It is difficult to prophesy how all these problems will be solved;
but it may fairly be conjectured that justice of first instance will
be more and more specialized and localized to suit modern convenience
and the obvious needs of the poor, and that specialization will not be
allowed to stand too much in the way of decentralization.
III
CORPORATIONS
In modern times the tyranny of the group is more oppressive than the
tyranny of the individual and becomes more and more irresponsible. We
all suffer from the arbitrary powers of the Trade Union as consolidated
by the Trades Disputes Act, 1906, and of the limited company as built
up by successive statutes since 1862. The Trade Union interferes with
freedom of labour and contract, and the limited company system has
fostered, and at the same time, protectively concealed the activities
of the Trust. The ordinary member of a Trade Union has little power of
controlling its policy and the ordinary shareholder would be surprised
to learn that he was entitled to regard the director of a company as a
trustee for the shareholders.
That a Trade Union should not be responsible for its torts or that
a shareholder should have but a strictly limited liability for the
enterprise in which he invests, may appear common sense to the
ordinary mind. Nevertheless a stable society reposes on the general
responsibility of individual citizens for their acts. The industrial
conflict of to-day shows some recognition of all this. There are
tendencies towards giving even the unskilled workers in joint stock
enterprise some share both of profits and management, and this may
even extend so far as to relegate the capitalist to the position of a
debenture holder. Obviously, however, such a result would weaken the
hold of the Trade Unions in so far as it promoted peaceful co-operation
between capital and labour, and it would support the old-fashioned
alliance between English law and individual liberty. Strikes do not
occur in the legal profession because its position is established.
The Trade Union of the future may very possibly be no more obviously
militant than the Bar Council of the Law Society.
The successful working of smaller enterprises may often be more
efficiently conducted by the machinery of limited partnership as
provided by the Limited Partnership Act, 1907. The machinery of the
Act has been neglected by solicitors who are too indolent to study
it and by laymen who enjoy the pompous verbosity of a memorandum and
articles of association; but in time to come it should be extensively
adopted.
The State will have to exert eternal vigilance against the power of
private corporations such as the above; but it must also control
public corporations and its own departments and again quasi-public
corporations like the Bank of England. I fancy that the Banks and big
financial trusts will acquire more and more control of public policy
as well as of private business and that this trouble will have to get
worse before it gets better.
IV
THE CRIMINAL LAW
We shall probably see in the near future some remarkable changes in the
Criminal Law which, particularly in England, is a peculiar blend of
barbaric violence, medieval prejudices, and modern fallacies. To-day
its sanctions are still largely theological. For instance, suicide
is a crime in Great Britain mainly because it is a sin against God;
but there is a growing tendency to determinism and to regard crimes
and punishments purely in relation to social welfare. Thus murder
is punished by hanging because it is a deadly sin; but the public
are beginning to distinguish between murder by poison and murder by
violence in so far as premeditation enters into the question.
There is also a disposition to avoid unnecessary cruelty or insults.
If a man can be sterilized by a surgeon or standardized by a
psycho-analyst, this solution of the problem will be preferred to
indefinite loss of liberty, and where indefinite loss of liberty
appears inevitable there is a new sentiment in favour of painless
extinction. The modern criminal is either to be reformed by prison or
else shut up for life and given such amenities as beer and tobacco to
console him for loss of liberty. He used to be looked upon as possessed
by the devil. To-day he is regarded as an imperfectly constructed
creature who cannot safely be left at large if his defects cannot be
set right.
This scientific point of view is in some respects not so human as
the Christian attitude; but it makes for politeness to the criminal.
The younger judges (_e.g._, Mr. Justice Finlay) are courteous and
sympathetic even when pronouncing sentence of death. The scolding
manner of the old type of judge will probably disappear in the next
twenty years, and perhaps we shall one day escape even the intolerable
inquisitiveness and pharisaical insolence displayed by the less
gentlemanly type of coroner, who presumes on the anomalous privileges
of his venerable Court to ransack irrelevant details and censure
long-forgotten irregularities in the lives and careers of persons
sufficiently unfortunate to be united by kinship or friendship to
suicides and murderers. Sir Hall Caine recently made an useful protest
on this point.
The famous narrative of the execution of Socrates by voluntarily taking
hemlock is not very creditable to our modern civilization. Socrates is
surrounded by his friends and his executioner is civil and amiable.
Socrates feels that this death is due to a certain blindness on the
part of his fellow-citizens to the importance of what he has to tell
them; but this collective stupidity does not diminish his respect for
the laws of his country. He is perfectly willing to suffer death in
order to vindicate laws which, taken as a whole, are essential to the
public safety. “Father, forgive them for they know not what they do”
are words which would have fitted quite naturally into Plato’s account
of the famous scene. The last utterances of many criminals have often
implied an acquiescence in the public necessity of laws which pinch the
individual hardly at certain crises of life.
A man is found guilty of rape if by persistent effort he has tired the
woman out or weakened her impulse to resist him. That may seem harsh
but is it any less harsh than to hang a man who has been mercilessly
nagged for an hour by an uncongenial wife after years of matrimonial
misery aggravated by the irritant of chronic semi-starvation? On the
other hand, this condemned criminal may feel that by his death he is
providing a better security for human life in time to come, just as,
according to William James, the vivisected dog might (if properly
instructed) know that he was helping to save both dog and man from the
ravages of incurable disease.
It may be hoped that crime may be reduced by legal reforms. The
reform of marriage and divorce laws should reduce conjugal murder,
legitimation by subsequent marriage should reduce infanticide, the
abolition of really grinding poverty should reduce all crimes of
violence, and the reform or repeal of certain laws relating to offences
which concern only adult individuals and not society at large should
reduce blackmail.
V
FAMILY LAW
Under family law I group marriage, divorce, guardianship, and
inheritance, and I shall assume, for the purposes of my forecast,
that the family will continue to exist as an institution and may
even be taken more seriously by the legislators of the future than
by the legislators of to-day, whose collectivist bias has taken the
form of trying to abolish every relationship of the individual except
his relationship to the State as citizen. I am inclined to think
that marriage laws will become more rational, that legitimation by
subsequent marriage will become law in England and Wales as well as in
Scotland, that there will be a law of adoption as on the Continent, and
that there will be a system of divorce by consent recognized as such as
well as divorce for matrimonial offences.
There should be no difficulty as to a law of adoption on Continental
lines. If anyone chooses to adopt a child and expend toil and money on
training and educating the child, that person should have some security
for quasi-parental control. If industrial schools are entitled to
disregard parental emotions, why should not benevolent individuals, be
rewarded for exertions made with the original consent of the parent?
Legitimation by subsequent marriage presents no difficulty except as to
the question of adulterine bastardy. At first sight it seems difficult
to allow legitimation except when the parents of the bastard were
originally capable of marrying; but considering the shocking anomalies
of divorce in England and Wales there is a strong case for legitimating
the adulterine bastard when possible and it has been done in some
British colonies. A compromise may be reached by limiting the period of
such legitimation to, say, twenty-five years from the date of the Act.
Any measure of divorce law reform for England and Wales will merely
bring the country into line with Europe on the one hand and the
Colonies and the United States on the other. I see the divorce court
of the future in two departments. The first department will deal
with divorces by consent, protect all parties from rash and heedless
decisions, adjust question of property, and deal with the problems of
guardianship. I imagine that divorce by consent will be subject to a
time limit of two or three years, and that all separations, whether by
decree or by voluntary deed, will mature into divorces after a certain
period of time. I hope that in the future divorce by consent will have
a time limit as opposed to the present system under which there is none.
The second department will deal with contentious cases in which
injury has been done. The judge will make every preliminary effort to
reconcile the parties, and the strictest privacy will be observed,
according to the Continental custom and to the old usage of nullity
suits in England where impotence was alleged. The present system of
divorce (which is a sort of surgical operation) is carried out rather
like a surgical operation without anæsthetics or aseptic precautions,
in deference to religious prejudice.
As regards the matrimonial offences for which divorce would be granted,
cruelty and desertion will certainly be included among them, and
probably imprisonment in the case of criminal lunatics. If the future
development of the criminal law results in more permanent detention,
then public sentiment will not be so much opposed as it is now to
the possibility of divorcing a spouse condemned to a long sentence
of imprisonment. The same attitude will obviously prevail in regard
to the detention of criminal lunatics, and probably also all other
lunatics where the disease has been continuous for five years and is
pronounced by experts to be incurable. But presumably the lunacy laws
will be thoroughly revised and safeguarded before any divorce for
lunacy becomes possible.
In regard to the financial side of divorce, it is to be hoped that any
alimony given to an innocent wife may at least be reducible if she
marries a wealthy man, and that among the poor the innocent wife will
be given a far better chance of enforcing her claim for alimony than
she is given now. American practice may profitably be followed on this
point. Whether public sentiment will continue to approve the award
of damages to a husband for the loss of his wife remains to be seen.
This may be justified in some cases, as, for instance, where the wife
supports the husband or is a rich woman and her breach of the marriage
contract involves him in pecuniary loss; or where the children, who in
such circumstances are already prejudiced by losing the joint care of
both parents, are also likely to lose financial advantages by reason
of their mother marrying another man. In such a case it does not seem
unfair that the co-respondent should make some provision for them if he
is in a position to do so.
There remains the question of guardianship, whether in relation to
marriage or divorce, and there seems little chance of this being
altered, except that possibly a mother, and especially a mother guilty
of adultery, may have more power in regard to her children than she has
now. Modern opinion is certainly tending to the view that the act of
adultery is not always incompatible with maternal love and efficiency
and that an unchaste mother is at least preferable to a cruel or
mentally deranged mother.
In regard to poor persons, I deal with the question generally in a
later chapter. But while on the subject of divorce, I suggest that
justice must one day be brought to the poor man’s door either through
the county court or the police court or some other court. If police
court separation orders are to mature into divorces, the police
magistrate is obviously the best person to decree a divorce at the end
of the period in question, and possibly he could even hear defended
cases. But trustworthy observers state that the police magistrate is
often quite unjust to a husband accused by a wife, either because he
thinks that all wives are in the right or because the husband is sulky
and verbose. The magistrate could, of course, do his work very much
better if both parties were legally represented, and if police court
solicitors ever form a rota to assist poor persons after the Scottish
fashion, better justice may be done.
I fancy, however, that the problem may be solved as it is in the United
States, by establishing courts of domestic relations. Apparently, these
courts do their work at comparatively little expense; and this work
is by no means confined to matrimonial disputes. The judges do, in
fact, reconcile many husbands and wives and adjust disputes that might
otherwise ruin many homes; but they also step in to regulate questions
of guardianship in cases where regulation is required. The lay reader
may possibly regard this as undue interference with the institution of
the family; but any lawyer acquainted with the beneficent jurisdiction
of the Chancery judges where minors are concerned, would naturally
wish the poor to have the same advantages in this respect as the rich,
and I, therefore, imagine that within fifty years courts of this
description will not only have divorce jurisdiction but will also have
the same powers as the Chancery judges now have over a ward of court.
I shall deal with this question more fully in a later chapter.
VI
THE LAND LAWS
The abolition of the Statute of Uses by Lord Birkenhead will be
an accomplished fact on the 1st January, 1926. Copyhold and other
picturesque tenures of the middle ages are to be abolished, the law of
real property is to be assimilated to the law of personal property,
women are to be put on an equality with men as regards the laws of
descent, and primogeniture is to be abolished. This is all, no doubt,
very sensible, but also depressing for anyone who likes to feel a
certain sense of continuity with the past. It also precipitates the
coming conflict between the Collectivist confiscation of land and the
ideal of small or peasant proprietorship. The land laws of the future
will, of course, depend on which party gains the day.
The consistent hostility of all ministries to agriculture is due to the
fact that Free Trade is now one of the regular ruts of British finance,
and even the peasant proprietor of France or Denmark would not flourish
without a certain amount of consideration from the State. Should the
voters of Great Britain swallow all the nonsense preached by the
followers of Henry George and Lloyd George in regard to land monopoly,
the ruin of agricultural prosperity and of the lovely landscapes of
Great Britain may confidently be anticipated; but should the wide
distribution of land among smallholders continue under the _ægis_ of
public favour, we may see the legal encouragement of freehold tenure
on Canadian or American lines and even of the tenant being able to buy
out his landlord on fair terms. It is curious that New Zealand, which
adopted State Socialism on a large scale in the nineties, is now mainly
governed by individualistic business men and land-owning farmers.
The big landlords play into the hands of Collectivists by allowing
their agents to do as they like. I, for instance, twenty years ago
bought a long lease of a house in St. John’s Wood, which will expire
just when I do not want to leave my happy home. I have a delightful
garden shaded by poplars and beeches which will probably be covered
one day by a block of untenanted flats. I want if possible to secure
my position and am quite ready to pay any fair price for the freehold
or for an extension of the lease. The Eyre Estate (my landlord) will
not even condescend to answer a letter of inquiry, and my experience
is by no means unique. No one is more disposed to be friendly with big
landlords than I am, for some of them are profitable clients; but my
own experience of the Eyre Estate impels me and many others to welcome
any law which will make the tenant less of a worm in the eyes of his
landlord.
The old system of entail and strict settlement will presumably
continue for some years with the aid of money derived from industrial
magnates and American heiresses. The conveyancers of Lincoln’s Inn
may be trusted to preserve institutions in defiance of legislation
just as they abolished, for all practical purposes, the right of dower
in the eighteenth century. The principal question is whether there
will be sufficient money or inclination to support the old system in
order to prevent places like Chatsworth and Warwick Castle from being
converted into public schools or lunatic asylums. If there is, then the
lawyers will be equal to the occasion, and already many big estates are
preserved from destruction by being turned into limited or (preferably)
unlimited companies.
Legal change depends on financial upheavals and human desires. The
desire to found a family and to buy a big estate is deeply ingrained
in Great Britain. The old aristocracy may go and a new aristocracy may
arise. But it may well be doubted if any new race of landowners will,
under the new conditions of being mulcted at every turn during life
and after death, be able to do for the countryside what the old type
of Squire did for his tenants――especially in times of agricultural
depression――or show anything like the same personal interest in the
cultivation of the land.
The best development which is at all likely to occur is the growth
of an agricultural system on Danish lines, and this would certainly
simplify the land laws.
VII
COSTS AND FUSION
A friend of mine once remarked to me that the rich never legislate for
the poor but always for the rich, to which I retorted that the poor
never legislate for the poor but always for the rich. The Labour Party
is ready enough to attack any wealth which no longer exists, such as
the so-called wealth of rural land-owners, but will never attack a
really bloated Trust such as an international industrial company; nor
are they ever likely to make such an attack. (I took care to satisfy
myself on this point before buying shares in one such company.) It is
therefore improbable that even should the Labour Party obtain permanent
power it will ever try to make law cheap for the poor; and the only men
and women who have ever taken any steps in this direction are the few
who realize that the pillars of society repose upon a belief in equal
justice for all.
I fear that I can see no prospect for at least fifty years of law costs
being reduced either for the rich or for the poor. So far as the rich
are concerned, one might suppose that they would insist upon the law
being codified into some degree of simplicity so that two citizens
might be able to arrive at their legal rights by successive postcards
referring to different sections of the code. That is the Utopian
ideal once expounded to me by Mr. H. G. Wells; but as years go on it
becomes more and more remote. Popular government leads to the endless
complication of statutes; and even if these statutes were intelligible,
the increasing power of bureaucrats to make rules for themselves
becomes more and more profitable for the lawyers.
I presume that one day the poor man will be allowed to obtain justice
within reasonable distance of his home. It is remarkable that a large
number of muddle-headed persons who wish to subsidize not only the poor
man but also his childless widow and any number of children whom he may
wish to procreate, have never understood that he might like also to
obtain justice, especially in the matter of domestic relations. Poor
persons ought certainly to have as good a chance of obtaining a divorce
as they have of being married, and also to have a chance of defending
vexatious proceedings on the part of either spouse. It is monstrous
that husbands should be treated as they are now in the police courts,
and arrested for arrears of maintenance as soon as they have finished a
term of imprisonment which in most cases they would never have incurred
but for a deep conviction of injustice.
If the community ever becomes sufficiently enlightened to provide
justice for the poor, I think that they will probably adopt the
American example of what are called Courts of Domestic Relations.
The Secretary of the Divorce Law Reform Union has received some
interesting communications on these courts from Judge Lindsey in Denver
and Judge Hoffman in Cincinnati. Judge Lindsey’s testimony is as
follows:
“I am confident, after twenty-three years as a Judge of a
Domestic Relations Court in America――where I granted thousands
of divorces and heard other thousands of separation and
non-support cases and controversies between parents over their
children――that a liberal divorce law contributes to morality,
decency, and, in the end, the strength of the home; but I shall
probably have to write a book, based on my experiences, to
prove it. A short article or interview is capable of so many
misunderstandings and misinterpretations, even though it be not
wilfully done.
“The fact that in some western cities we have a great many
divorces does not mean an increase in immorality, or even an
increase in the breaking up of homes. It is often the very best
thing that could happen. Of course, it is our policy in this
Court to get discordant couples together where we can; but
there are some cases where we would consider it nothing short
of a crime to try to get them together, and on the contrary
try to get them apart, but all in the interest of morality and
decency.
“I am judge at this time of what is known as a separate,
special Court, in a city of nearly 300,000 people in one of our
western cities (Denver, Colorado). The State has a population
of about a million people; but my jurisdiction is limited to
its capital city, which has nearly one-third of the population
of the entire State. The western part of the State is very
mountainous and sparsely settled; the eastern part is mostly
arid country and at present without irrigation, being also
sparsely settled; but there are certain sections of the State
which are very good for agriculture and others rich in mineral
resources; and as a commercial centre, Denver is a delightful
and beautiful city, made up of the best people in the world.
“Last year we had in this city about 3,000 marriage licenses,
and about 1,500 applications for divorce, with perhaps not
over 1,000 of them granted. We have a city of excellent homes
and exceptional laws for the protection of children, and the
morality of our people is equal to that of the very best.
“I am sorry that we have not as yet completed the contemplated
report of this Court, which we expect to have printed. I am
hoping to have it ready in about six or eight months, and I
think it will be a volume that will greatly interest your
readers.
“This Court has jurisdiction over all children’s cases, and all
youths under twenty-one, all cases of non-support or desertion
of wives or children, and of controversies of parents over
their children, and practically all criminal cases where the
accused has committed an offense against a child. Thus, it
is a special tribunal for the _correction_ and _protection_
of children and some cases of domestic relations. We do not
now have the divorce cases proper, although I tried them for
seven or eight years exclusively. The reason for this is that
happily most of those cases are between couples who have no
children, and the divorce cases take up too much time from the
more important work dealing with children’s cases. However, in
a divorce case where there is a controversy between husband
and wife over the custody of a child, it may be heard, and
frequently is heard, in this Court. A Bill is now before the
Legislature which will practically require the hearing of most
of these cases in this Court.
“We have visitation and probation officers, medical clinics,
physical and psychological, which aid and assist us. The work
of this Court, in a word, is more that of a place of human
adjustment――adjustment of human difficulties growing out of the
relation of the sexes, married or unmarried. To my mind this is
the most important kind of a tribunal and ought to exist in,
say, ten or fifteen districts in London instead of the system
you have of dividing the work into many courts where none of
them are equipped as experts. An address which I delivered
nearly ten years ago still covers a great deal of my ideas on
the ideal tribunal of this kind.
“The budget of this Court for all its work in its various
divisions, last year, was about $30,000. I believe with
you that would be about £5,000 or £6,000. This includes
the salaries of the judge, the clerks, probation officers,
stenographers, visitation agents, specialists, etc. We heard
and disposed of about 3,000 cases last year at an expense
of about $10.00 per case (about £2). Perhaps in half of the
cases of domestic difficulties we were able to bring about an
amicable settlement and restore the relations in the home. In
perhaps twenty-five per cent. of them we were quite agreed that
no effort should be made to restore such relations unless we
wished to contribute to crime and immorality. Of course, in
most of such cases the old church view would be to persuade the
people to live together in a state of what to us is sin and
crime, but with the church is considered perfectly proper.
“When we have to send a youth to the State prison, jail or
reformatory, we send him by himself on trust and honour,
without an officer and without official restraint. Out of some
eight hundred thus committed in the last twenty years, we have
never lost a prisoner.
“We very seldom swear a witness in the Court, and seldom
take testimony. The cases are tried by what we call the
administrative method. For example, the wife will consult with
me one day, the husband the next, and then both together. I
could see a witness for either side at any time. We listen to
anyone who wants to talk, so long as they do not all talk at
once. We have no rules of evidence and no Court costs, and, as
a rule, no lawyers’ or counsel or solicitors’ fees. The judge
of this Court is a human adjuster of human difficulties without
cost or expense to the parties involved.
“Most of the people involved in sex cases come here voluntarily,
even though the cases may involve criminal offences. People
never lie to us, although it is very rare that they are ever
sworn to tell the truth. In most cases their own papers are
prepared by the clerks of the Court for both sides, without the
need or aid of lawyers or solicitors. I should say that in not
over one case in fifty does any lawyer ever appear. Of course,
if they wish to appear they have a right to, but, as a rule,
litigants do not want them because they do not need them. In the
saving of counsel, solicitors’, and Court fees for litigants,
many thousands of dollars have been saved, and other financial
savings during my administration have amounted to millions of
dollars, as can be shown by the records. There is, perhaps, not
an “exception” or an appeal――though that right is allowed――in
one case out of five thousand in this Court. In other words, it
is a Court of justice without any of the hampering hobbles that
make for perjury and crime in other courts, as we have found
from actual experience.”
Judge Hoffman writes as follows:――
“It being fairly well conceded by scientific social workers
that delinquency of children, divorce, desertion, and adult
criminality are inter-related and in great measure originate in
the family, it was determined in 1914 in the City of Cincinnati
to organize a court that might deal with the family situation
as a whole; consequently, in that year the Legislature of the
State of Ohio provided such a court for Hamilton County, in
which the City of Cincinnati is located.
“Hamilton County has nine Nisi Prius Judges, designated in
our State as the Judges of the Court of Common Pleas. The law
stipulated that at the next election of the Judges of the
Court of Common Pleas one should be designated on the ballot
as Judge of the Court of Common Pleas, Division of Domestic
Relations, and to the judge so elected, the judges in joint
session should assign all divorce and alimony cases, all cases
of desertion and all cases arising under the Juvenile Court
Act, which includes contributing to delinquency and dependency.
As the Juvenile Court administers mothers’ pensions, this also
comes under the jurisdiction of the so-called Court of Domestic
Relations or, as it is termed in this city, Family Court.
“The purpose of the Court was that of securing more efficient
handling of the problems of an anti-social character that
arise in the family, and also of ascertaining, if possible,
the causes of family dissension and disruption. While the
law does not so provide, yet we have been able to organize
a psychological and psychiatric clinic in connection with
the court. The clinic now has three psychologists and a
psychiatrist; in addition thereto, a physician for the purpose
of making physical examinations of girls.
“The Juvenile Court procedure has all but disappeared. We do
not believe that a court procedure has any therapeutic value
in the handling of children afflicted with that which we term
the disease of delinquency. It has been found possible for us
to prevent the sending of children to the industrial schools,
reformatories, or correctional institutes of any character.
“In this State we have an industrial school that now has
a population of 1,200 boys. Cincinnati has a population
of 500,000 and is the second largest city in the State.
Notwithstanding this fact we have but two boys in the industrial
school at this time and these two have been committed to that
institution only because we have found them to be incurable and
there is no other institution in the State that is equipped to
handle cases of this kind. We hope to remedy this defect at an
early date. We have sent no girls to the State industrial school
for three years last past.
“It is a well-established fact that the anti-social behaviour
at the basis of divorce is exceedingly injurious to children;
therefore we use our probation force in the divorce division
and attempt to care for the children involved.
“We have a central record system in which the history of the
whole family is recorded. We find that in 30 per cent. of the
divorce cases the family has previously appeared in some way
in the Juvenile Division. The significance of this fact is
apparent.
“We have found, too, that the grounds for divorce mentioned in
the petition or complaint are but descriptive of the symptoms
of the real causes that are seldom, if ever, mentioned in the
petition or appear in the evidence. In fact, so far as the
court procedure is concerned, the real causes would never be
revealed. We made an intensive pathological investigation and
examination in about 1,400 cases. The facts revealed in these
examinations are of such a nature as to utterly refute the
doctrine that in no instance ought a divorce to be granted or
that a party should be prevented from obtaining a legal relief
by a restricted divorce law or by making the divorce procedure
so costly as to prevent the party from obtaining any relief
under it.”
There are also certain other points which may one day be settled in
order to give justice to the poor. One of them is the question of costs
for an innocent person arrested on a criminal charge. It seems to me
only right that if the prosecution fails the prisoner should have a
right to obtain costs against the Crown even if he is not allowed
the right of suing the Crown for damages for malicious prosecution,
which, I think, should exist just as much as in the case of malicious
prosecution by a private individual. In regard to murder, the prisoner
has the special advantage of being able to give exclusive rights to
some particular newspaper in consideration of the newspaper financing
his defence; but in so far as this leads to a disproportionate amount
of limelight being thrown by the said newspaper on the private life of
the family history of the criminal, it tends to have a demoralizing
effect. This advantage is at any rate denied to the ordinary poor man
who is wrongfully arrested on some minor and scandalous charge, and the
situation to-day is enormously aggravated by the employment of narks
or decoys in mufti by the police.
I imagine that many of these reforms will be carried out by the
Ministry of Justice which was so ardently advocated by the late Mr.
Samuel Garrett as a substitute for the overworked Lord Chancellors of
our day. But perhaps I need hardly recapitulate here the arguments for
such a ministry which are set out in my book _Concerning Solicitors_.[1]
[1] Published by Chatto & Windus.
Personally I believe that justice for the poor can be and will be
achieved mainly on the Scottish system, which provides a rota of
counsel and solicitors for poor persons in both civil and criminal
matters. Many publicists, the most eminent of whom is perhaps Walter
Bagehot, have imagined that cheap law could be achieved by what is
called the fusion of solicitors and barristers. I gravely doubt
whether this process will ever take place in Great Britain, or
whether, if it did, it would have many of the advantages which have
been attributed to it. Some years ago I took the trouble to make some
enquiry into the matter, and I obtained expert opinion in regard to the
Colonial and American system, under which fusion has been established.
It works fairly well in the higher courts of sparsely populated
colonies, for there the need for specialization is not so acutely felt
as in big cities, where more money is usually at stake and where the
solicitor has much more work to do in his own office. On the other
hand, even where fusion exists, it does not abolish the essential
division of labour in regard to preparing a case for hearing and
expounding the case in court. The information which I obtained resulted
in the following conclusion:――(1) Fusion would not tend to make law
any cheaper in Great Britain and it certainly does not make law any
cheaper in the Colonies or in the United States. (2) Fusion would not
mean greater despatch in dealing with business. (3) The client would
not obtain better advice, because where fusion exists the firm of
lawyers whom he consults prefer the opinion of a partner to that of a
specialist in another firm.
We may possibly see the lay client enabled to consult counsel direct
where litigation is not concerned and the solicitor’s right of audience
in the High Court slightly extended.
VIII
PRIVATE INTERNATIONAL LAW
In a previous chapter I pointed out that our Commercial Court practice
was not tending to the creation of international Courts; but some
merchants are entering into international arbitration agreements to the
exclusion of their national courts and it is said that these work well,
though they involve more delay. The progressive creation of public
international tribunals may encourage the growth of similar tribunals
for settling private disputes; but the principal outstanding obstacle
to international agreement on questions of status and property is the
conflict between the tests of nationality and domicil.
In the British Empire we have at last achieved an Imperial Nationality
and alongside of it exists a local nationality which will vary
according to the laws of each colony, which prescribe different periods
of residence. If this movement for uniformity continues it may have
great results. Nationality at present concerns a man’s property very
little――in the United Kingdom not at all except as regards the capacity
of owning ships. It gives certain political privileges; but the law
affecting marriage property and contracts has nothing to do with
nationality, and in this respect it differs sharply from the laws of
continental nations. A contract according to English law (whether for
sale or marriage) is good if valid according to the laws of the country
in which it is drawn up and made. Personal or “movable” property is
dealt with according to the law of a man’s domicil (except in the cases
of bankruptcy or liability to income tax which turn upon residence),
and although a marriage contract is good in England, whatever the
domicil of the parties, it cannot be dissolved except in accordance
with the law of the country which is the husband’s domicil. (Land is
dealt with according to the law of the country in which it is situate.)
Clearly, therefore, the domicil is the most important test of all the
English-speaking world, yet it is of all tests the most uncertain.
The late Professor Dicey, in his last edition of the Conflict of
Laws, admits the extraordinary difficulties surrounding the subject,
especially in the case of what is called “Anglo-Indian domicil” and the
possibility of determining the intention of the person whose domicil is
called in question, for domicil depends entirely on (1) residence and
(2) the intention to remain in the place of residence. In many cases it
may be said that a person’s domicil cannot be decided till he dies, and
even then perhaps not with certainty.
The doctrine of domicil grew up under the Roman Empire, which comprised
many local systems of law, but only one citizenship. It became an
essential doctrine of English law and is common to the English-speaking
world except where the test of residence alone has been substituted,
_e.g._, for divorce jurisdiction in the United States, formerly in
India, and in one or two of the Colonies, _e.g._, New South Wales. In
these cases a conflict of laws at once arises between the tests of
residence and domicil, so that, _e.g._, a wife who obtains a divorce
in New South Wales finds that it is not recognized in England if the
husband has an English domicil.
A different conflict arises between the laws of almost all continental
countries and the laws of English-speaking countries, because the
continental jurists have adopted the tests of nationality instead of
domicil. Anyone acquainted with the doctrine of the _renvoi_ and with
the liability to double death duties and general uncertainty of status
in connection with marriage, divorce, and legitimacy resulting from
this conflict must certainly agree that the present system is anomalous
and defective.
The best solution of these difficulties would be:――
(1) To establish an uniform nationality for the Empire coupled with the
test of residence in regard to local laws, such as we should see in the
United States if the Americans adopted residence instead of domicil as
the test in every State, and
(2) To substitute an uniform test of residence for domicil while
safeguarding certain convenient doctrines by international, as well as
imperial, convention.
It is, for instance, highly undesirable for a Frenchman to carry about
with him an incapacity to marry under 25 without parental consent
wherever he goes. If he marries an Englishwoman in England the French
Courts must be induced to admit that the marriage contract is good if
celebrated according to English law. This also applies to Italy.
Again there is an obvious convenience in the old rule that land must be
dealt with according to the law of the country where it is situate, and
personal property according to the law of the domicil (or, as I should
prefer to have it, the law of the local nationality).
It is anomalous that a colony like British Columbia should exact death
duties on shares held in an industrial company trading in Vancouver by
a deceased Englishman domiciled in England. A special order in Council
enables the executors of the Englishman to recover the estate duty they
have to pay on such shares before the will can be proved; but it does
not relieve them from the nuisance of filling up forms to supply a vast
quantity of absurd and irrelevant information compared with which the
famous Form 4 was positively pleasurable.
To establish the test of nationality would at once sweep away most
of the worst cases of conflict between our own test of domicil and
the continental test of residence. There would be comparatively
little confusion as to what law should be applied in most cases. If
an Englishman died in France his Imperial nationality would at once
determine the principle that his status and property were in no way
involved in any question of a French domicil, and his English “local
nationality” acquired either by birth or residence would determine the
rest. This would entirely fit in with the laws of the Continent.
The same facilities would make for uniformity in the marriage laws
throughout the Empire. An Imperial subject living in, _e.g._, the
West Indies or the Channel Islands (where there is no divorce) would
be entitled to obtain a divorce according to the law of England or
Scotland or any colony in which divorce existed by, say, five years’
residence. The period of residence and nationality are indisputable
facts; the domicil is not. Take, for example, Scotland. A woman may
divorce her husband in Scotland, yet the Scottish law permits her
husband within 40 years after the decree to go to the Court and annul
the decree on the ground that his domicil was not, at the time of the
suit, Scottish, although he may have put in no such defence at the
time. A law which clearly could not be invoked except after a period of
five years’ continuous residence, without regard to what the husband’s
intentions were or where he happened to own houses or land, makes for
order where the present law produces chaos. Under my system the husband
will no longer be able to say, “I had property in Scotland, but I did
not often reside there; I have now decided to let it, and my present
intention is to die in Timbuctoo.”
The test of residence would also solve the difficulties of a wife
living apart from her husband because she might be allowed to acquire
the right of invoking the laws of the country in which she resides, as
she can to-day in England when she asks under the old ecclesiastical
rule for a judicial separation or nullity of marriage, and this right
would be recognized throughout the Empire.
Every day the tests of nationality and residence are gaining ground.
Every day the test of domicil gives rise to more complicated disputes.
Unless we mend our ways in time, the present confusion will become
rapidly worse confounded.
I venture to think that a reform which so obviously appeals to the
common sense of mankind must arrive within at least fifty years. It
involves rather less hard work than the Birkenhead Statutes about real
property.
There are many persons to-day who either have a double nationality or
no nationality; but these anomalies are for the most part due to the
absence of international agreement owing to the gulf set up by the
conflict of domicil and nationality.
IX
INDIVIDUAL LIBERTY
In other books I have shown how individual liberty originated with
the Stoic philosophy and was developed under the Christian religion
and through the feudal system of medieval Europe. It was fostered by
Humanism; it was idealized by Puritans like Milton in the seventeenth
century and by the English writers and philosophers of the eighteenth
century. It was still further expanded by men like Jeremy Bentham and
John Stuart Mill in the nineteenth century. From 1880 onwards, the
Collectivist Germanophil tendencies which Mr. Belloc has grouped
together under the general description of “The Servile State,” has
led to a contempt for human liberty due to the multiplication of
propertyless wage-earners living in huge cities and divorced from the
property-loving existence of the yeoman and peasant. This development
goes back to the industrial revolution. Democracy values equality more
than liberty, and the Great War destroyed many individual privileges
which have not yet been restored. Modern Puritanism similarly
reinforces the effort to impose on the Community a rigidly standardized
existence with no outlet for individual preferences in architecture or
food or drink. Every hour must be of the same pattern and everyone must
do everything at the same time.
The increasing Americanization of Great Britain may well breed despair
in anyone who wishes to see the ideals of the aristocrat, the humanist,
and the peasant preserved by law. It may be that the last refuge of
liberty will be found in the Catholic Church, which was the only
religious body with sufficient courage to resist Prohibition in the
United States, and that the Common Law of England, inspired throughout
by traditions of freedom, will be gradually extinguished by a multitude
of pettifogging Statutes, each destroying piecemeal some little vestige
of a period when a man could call his soul his own.
There is, perhaps, only one reassuring sign of the times, which is that
the lawyers both here and across the Atlantic have as yet shown no
disposition to repudiate the traditions of English jurisprudence and
efforts to increase the right of search in private houses (as in the
case of the Wireless Bill) have been stubbornly resisted in Parliament
on this side of the Atlantic.
We stand, perhaps, at the parting of the ways and it is difficult to
discern whether the old alliance of law and liberty will endure; but it
is to be hoped that the ordinary citizen will take to heart the obvious
truth that if liberty cannot exist without law, law equally depends on
liberty based on responsibility, for any law which weakens or destroys
liberty breeds anarchy. Recent history has confirmed this platitude
both in Russia and in the United States of America, so perhaps we may
hope for the best while not abating any vigilance. There are, however,
most disquieting signs in Great Britain of gross tyranny exerted by
our new bureaucracy against taxpayers and by the police against young
men and women――verging on blackmail in certain cases. The Victorian
ideal of liberty is dead and no other ideal has yet come to life. “Quis
custodiet custodes?”
* * * * *
Transcriber’s Notes:
――Text in italics is enclosed by underscores (_italics_).
――Punctuation and spelling inaccuracies were silently corrected.
――Archaic and variable spelling has been preserved.
――Variations in hyphenation and compound words have been preserved.
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