GENERAL OBSERVATIONS AND CONCLUSION
It is the office of the courts to administer written laws enacted from time to time in response to the popular mood. They also—and it is the more important function—discover and declare the principles of natural justice which, in the absence of written law, govern the decision of a controversy. These deliverances, constituting the common law, rely much upon precedents which, however, are not followed slavishly, but are continually being modified—sometimes abruptly—in harmony with prevailing sentiment. Thus, the law expounded by the courts is ever changing and it slowly follows public opinion.
Both the public opinion and the law of England were, for generations, characterized by the quality of conservatism. The various reform acts, starting in 1832, marked the advent of an epoch of individualism which, lasting for over fifty years, made England the land where personal liberty and private property were perhaps safer than ever before in the world's history. It was a country where government's chief concern was to furnish irreproachable courts, competent police and few but honest civil servants, so that each man might pursue happiness after his own fashion with the least possible interference, yet with complete confidence that he could assert his rights effectively when invaded. Hence it was that America learned to look to England for precedents.
All this is changing. The substitution of the doctrines of collectivism for those of individualism began in 1885 and it proceeds rapidly in many directions. The socialistic harangues one hears from vagabonds mounted on benches in Hyde Park are delivered without interference by the police. The spreading of discontent by paid agitators proceeds at the market crosses and in the taverns of the villages between elections. Later the politicians appear and solicit votes for impossible schemes, an ever increasing proportion of which are actually adopted by Parliament and of which the laws regulating liability for personal injuries, attacks upon land and other forms of property, old age pensions and the methods of public education, furnish typical examples.
Sidewalk Socialism—Hyde Park
The Workingmen's Compensation and Employers' Liability Act of 1906 was a tentative step, but seems likely to lead to extended liability and reduced defences, particularly in the matter of contributory negligence, which has almost ceased to be a factor. One of the clauses of this Act shows that, even when it is proved that the death or serious disablement of a workman is attributable to his own wilful misconduct, compensation may yet be claimed on his behalf from his employer. In addition, another and unheard of form of liability for an employer, requiring him to compensate his servant if the latter falls ill or dies of an "industrial disease" (a list of which diseases was appended to the Act) and with the extraordinary provision that, having paid the compensation, the employer may sue any former employer for the amount, if he can prove the servant actually contracted the complaint in the earlier service and within ten years.
Of course universal accident liability insurance followed, the cost of which must be borne by the proprietor, and, if he is a manufacturer, eventually by the consumer. As may be imagined, such laws give rise to surprising results. The report of one of the great accident liability insurance companies, made shortly after the passage of this law, exhibited, for example, the recovery of damages by a domestic servant, who, while eating a meal, had swallowed her own false teeth; another had contrived to swallow a curtain hook; a third was burned by the bed clothes taking fire from a hot iron which she had wrapped in flannel for the purpose of warming herself. The manageress of a laundry had her hands poisoned by handling copper coins. A footman was bitten while attempting to extract a cat from the jaws of a dog; a nurse-maid was burnt by letting off fire works in the back garden at a private celebration of the servants during the master's absence, and a cook had her eyes scratched by the house cat. Such absurdities show the trend of modern English legislation on the subject.
A glance at an English landscape with its panorama of endless turf and forest and comparatively small areas of cultivation, in marked contrast with the minute utilization of every inch on the Continent, and the reflection that England produces only a portion of the food consumed in its crowded towns, should leave no one surprised at an agitation to modify the existing conditions, which led to continued assaults upon all forms of possession, whether of real or personal property. Acts of Parliament followed each other in quick succession depriving land owners of their holdings to inaugurate chimerical building schemes; giving rent-payers power to condemn and forcibly purchase dwelling houses; attacking property other than land by taxing the inheritance of money so heavily (on a sliding scale of percentages increasing with the size of the estate), as to approach the socialistic ideal that two deaths shall mean the absorption by the State of any large property and that no man shall enjoy a rich grandfather's accumulations; levying upon the living wealthy by ever increasing income taxes, with a like sliding scale, operating upon them alone, while exempting the poor. To this almost confiscatory taxation no limit seems to be in sight.
Old age pensions—one of the most startling novelties of the collectivist—are doubtless economically impossible and morally pernicious unless required to be contributory on the part of those who may later claim them, so that they constitute a system of compulsory saving and insurance, as is the plan in Germany where socialism is at least somewhat scientific. But it remained for the once conservative England to inaugurate the distribution of universal alms without any comprehensive plan for raising the money—the weekly dole to be inevitably increased and the age limit lowered as the exigencies of vote-seeking politicians render expedient.
No one now questions the propriety of a Government providing free education for children, but in England a father, no matter how well qualified, may now be prosecuted for educating his child himself rather than sending him to a Government school to be fed as well as taught.
At the Marylebone Police Court a well known journalist and writer on education was summoned by the Education Department of the London County Council some time ago for neglecting to send his four children to school. He was, himself, an old and experienced teacher with credentials from one of the colleges of Cambridge University. He did not believe in sending his children to school until they reached the age of ten or eleven, but meanwhile he taught them himself, viva voce in the open air, according to the system of Froebel and Pestalozzi, and endeavored to make education a delight. This was the father's chief occupation and he devoted as much time as possible to training all the mental faculties, without exhausting the nervous force or injuring the physical health, of his children. The eldest, a boy of fourteen, had contributed an article to one of the leading magazines which was pronounced by a competent editor of another periodical to be an extraordinary effort for a boy of his age. It appeared that he knew Shakespeare well and was in the habit of quoting him and other poets, but that his brother, aged eleven, preferred Wordsworth. He considered the English language "awkward," French "euphonious" and German "rationally spelt." It was rather a relief to find another brother, aged nine, who was deep in "Robinson Crusoe." A school-attendance officer, however, had reported that the children did not attend the elementary schools and the magistrate imposed fines upon the father, but, upon it appearing that he had no property, he was sentenced to imprisonment for seven days in respect of the Shakespearean, and five days each to cover the lover of Wordsworth and the student of Defoe. A month later the father was summoned before a different magistrate in the same police court who fined him in respect of the youngest child and adjourned the hearing in order that the other three might be examined by a government inspector to ascertain whether they were being efficiently educated. This episode may not have been typical, but that it was possible in modern England illustrates how out of date is the old-fashioned conception of the personal liberty and freedom from governmental intrusion which once characterized that Island as distinguished from the Continent.
These are but examples of a series of surrenders to the proletariat, which have practically delivered over the general Government of England to the collectivists; while the education and training of many of the party managers who are responsible for it, renders incredible the excuse that they may be only fanatics.
Simultaneously, municipal socialism has spread in a manner affecting the public even more intimately. Over three fourths of the Councils—County, Town, Urban District and Rural District—are engaged in municipal trading of various kinds, operating inefficiently and generally at a loss, such enterprises as golf links, steamboats, concert halls, motor busses, markets, trams, bath houses, gas works, libraries, telephones, milk depots, electric lighting, lodging houses, building operations, insurance—and a host of other undertakings heretofore left to private initiative.
All this means an ever increasing army of officials, agents and inspectors. The interference of a paternal government is threatened or felt in every detail of existence. The people have learned to agitate collectively for advantages to be taken from some classes and distributed to others. Without a constitution (for the so-called English Constitution is but a misnomer for former laws and decisions which are subject to constant repeal and alteration) and without a Supreme Court capable of declaring wild legislation to be unconstitutional—for every act of Parliament becomes a law which can never be challenged in any court—there is no brake to retard, and the politicians of all shades are left free to compete in casting one vested right after another to the mob in quest of votes.
The most serious effect of all this is, probably, the tendency to weaken that sturdy self-reliance upon individual effort which has always characterized Englishmen, and the encouragement of an attitude of leaning upon the Government and of looking to legislation to remove all difficulties. No popular disturbance is impending—it is unnecessary, for the revolution progresses smoothly and the whole country is adjusting itself to the new order of things. The possessors of property seem singularly resigned, or at least inarticulate, and submit almost in silence to spoliation. Such opposition as exists takes chiefly the form of party controversy upon details, and criticism by each faction of the steps of the other. Few seem to realize how far the country has departed from its former standards or that the most moderate proposals of to-day were radical yesterday.
It is a great race, this Anglo-Saxon, and it has shown wonderful capacity to govern itself in the past. It may prove to be wisely meeting half way an approaching avalanche of worldwide socialism destined to modify the existing order of society. Or can it be that England has seen its best days?
One thing, at least, is sure—the United States is at the moment infinitely more conservative than England. Both are pure democracies, and therefore if the people should be resolved to abolish the rights of property as we at present know them, it would inevitably be accomplished. That the majority are really of that mind in either country is more than doubtful; but in England the politicians seem to be destroying that which it has taken centuries to build up, whereas in America this could not happen unless the conviction was so widespread, determined and permanent, as to accomplish what is apparently impossible—the radical amendment of the Constitution.
This digression into the field of politics is only relevant in its possible effect upon the courts. They, at present, necessarily exist in an atmosphere of confusion and of constant annihilation of rights. The head of the whole administration of law, the Lord Chancellor, is a political appointee changing with the parties. He appoints the other judges, the King's Counsel and, directly or indirectly, he is the great source of legal advancement. True, he has for a long time been selected from the leaders of the Bar so that he has been professionally well qualified. But this was not always the case and it is not necessarily a permanent condition, especially in a country passing through such fundamental changes.
Time alone will show whether these violent shocks will disturb the balance of the scales of justice. For the future, realizing that England is no longer conservative, but is now the land of startling experiment, it would be at least prudent to accept its political and legal precedents with caution.
One sometimes hears it said that we have too many judges, and the argument is apt to be urged by the assertion that the number in a large city is as great as in all England. The natural inference is that our judges work less effectively.
No statement could be based upon falser premises. The roll of judges in the High Court is, indeed, a limited one and, as they try small as well as large cases, the impression might follow that they constitute the whole judicial force of England. The fact, however, is quite the reverse.
Taking at random the daily Official Cause List for London there will be found on a given day sitting at the Law Courts in the Strand alone, twenty-one judges of the High Court, eight masters, seven Chancery registrars, twelve masters in Chancery, three official referees, two registrars in bankruptcy and one official presiding over "companies winding up"—exactly fifty-four men simultaneously performing judicial duty in one building. Each of these is holding what is practically a separate court and his title is of no significance. When one remembers that at the same time the House of Lords is sitting at Westminster, the Judicial Committee of the Privy Council in Downing Street, the four Criminal Courts at the Old Bailey, more than twenty police magistrates at Bow Street and elsewhere, and County Courts, at Bloomsbury, Clerkenwell, Edmonton, Marylebone, Shoreditch, Southwark and Westminster, some idea may be formed of the number of judges and courts always at work in the metropolis.
Innumerable courts are also sitting in the provinces, which, if less important, serve to relieve the metropolitan judges. The justices of the peace number in many counties three or four hundred and in one county about eight hundred, although most of them never attend and the work is done by comparatively few. They sit singly as committing magistrates and in groups at petty sessions and at quarter sessions. There are also a large number of borough criminal courts presided over by a recorder. Besides, the county courts are over five hundred in the aggregate, though there are not so many county judges, for the smaller courts are grouped into circuits. Finally, there are the Assizes of the High Court coming down periodically from London to try causes, both criminal and civil, all over England.
Thus the little Island fairly bristles with tribunals and teems with judges and any criticism of American judges or of American judicial methods by such comparison would only be possible in ignorance of the facts.
In America, litigation begins in the court room; in England, it ends there. American proceedings tend to be somewhat formal, conventional, diffuse and dilatory. Pitfalls and traps are occasionally laid by astute practitioners, which embarrass the side really in the right and delay a conclusion upon the merits. Much is incomprehensible to the laymen concerned except the result.
English legal proceedings on the contrary are colloquial, flexible, simple and prompt, thoroughly in touch with the spirit of the times and with the ordinary man's every-day life.
The legal decisions of the two countries are probably of equal value, and are held in mutual respect. Neither, perhaps, could claim any superiority over the other in its legal results, but in methods, England at present is far in advance.
This was not always so. Up to 1875 the English courts were most slow, expensive and unsatisfactory. But in these thirty-five years, reforms in methods have so progressed, step by step, that the most important action can be tried, a judgment given, appeal taken, argued and orally decided as counsel sit down—all in ninety days. The details of these improvements are too technical for the present occasion; suffice it to say that they are characterized by the utmost simplicity, and many of them are capable of adaptation with modifications to American conditions.
In America, the Bar is almost unorganized. It has little voice in the selection of the judges, of whose qualifications the politicians have no knowledge; it is weak in disciplining and purging itself and in commanding public respect for its rights; its standards of professional propriety are not clearly enough established, although great improvement is noticeable in all these respects. In England, the Bar is well organized and governs the whole administration of the law, jealously resenting any interference with its ancient prerogatives and preserving its own professional honor.
Thus, a close observation of professional life in England will prove instructive and suggestive to the ever-alert American. Nevertheless he will depart with a feeling that, while at home there is room for progress, yet, upon the whole, the old profession in the New World well maintains its proud position.