Part 3

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?”

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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.