E. S. P. Haynes

“ 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. ”

“ 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. ”

“ 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. ”

“ We very seldom swear a witness in the Court, and seldom take testimony. The cases are tried by what we call the administrative method. For example, the wife will consult with me one day, the husband the next, and then both together. I could see a witness for either side at any time. We listen to anyone who wants to talk, so long as they do not all talk at once. ”

“ COSTS AND FUSION
A friend of mine once remarked to me that the rich never legislate for the poor but always for the rich, to which I retorted that the poor never legislate for the poor but always for the rich. The Labour Party is ready enough to attack any wealth which no longer exists, such as the so-called wealth of rural land-owners, but will never attack a really bloated Trust such as an international industrial company ”

“ The fact that in some western cities [50] we have a great many divorces does not mean an increase in immorality, or even an increase in the breaking up of homes. It is often the very best thing that could happen. Of course, it is our policy in this Court to get discordant couples together where we can; but there are some cases where we would consider it nothing short of a crime to try to get them together, and on the contrary try to get them apart, but all in the interest of morality and decency. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ We have no rules of evidence and no Court costs, and, as a rule, no lawyers’ or counsel or solicitors’ fees. The judge of this Court is a human adjuster of human difficulties without cost or expense to the parties involved.
“Most of the people involved in sex cases come here voluntarily, even though the cases may involve criminal offences. [56] People never lie to us, although it is very rare that they are ever sworn to tell the truth. In most cases their own papers are prepared by the clerks of the Court for both sides, without the need or aid of lawyers or solicitors. ”

“ 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. ”

“ 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. ”

“ 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 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. ”

“ 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. ”