Chapter I: 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.