LYCURGUS

OR

The Future of Law

BY

E. S. P. HAYNES

Author of “Divorce as it Might Be,” “The
Enemies of Liberty,” etc.

New York
E. P. DUTTON & COMPANY
681 Fifth Avenue

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.

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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[ix] 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[x] 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.

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[2] 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[3] 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.

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(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[5] 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[6] 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[7] 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.

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[9] 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[10] 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.

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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.

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,[13] 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[14] 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[15] 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[16] 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[17] 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.

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[19] 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,[20] 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[21] 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.

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[23] 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[24] 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[25] 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[26] 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[27] 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.

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[29] 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[30] 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[31] 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[32] 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[33] 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[34] 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[35] 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[36] 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[37] 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[38] 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.

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[40] 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[41] 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[42] 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[43] 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[44] 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.

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[46] 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[47] 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[48] 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[49] 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:

Judge Hoffman writes as follows:—

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[62] 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[63] 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]

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[64] 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[65] 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.

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[67] 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[68] 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[69] 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[70] 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,[71] 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[72] 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[73] 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[74] 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[75] 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[76] 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[77] 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.

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[79] 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.

[80]

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[81] 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[82] 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?”