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Part 1

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

_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.

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.

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.

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.

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.