Page images



determine any cause in which he is or may be "interested." The extent and definition of such "interest often gives cause for divergence of opinion and occasion for case law. The fact that a justice thus interested has adjudicated on a case does not of itself invalidate the decision, though it is certainly a good ground for commencing High Court proceedings to reopen the case. Summary Jurisdiction Acts, passed in 1842, 1843, and 1879, lay down the duties, powers, and privileges of justices both in and out of sessions, but to enter into a detailed or adequate discussion of these very comprehensive and excellent Acts would transgress the reasonable bounds of this paper. Nor is it possible to enter fully into the multifarious powers with which a justice is invested whilst out of court, such as the power of ordering arrest, and, under the Lunacy Acts, of committing lunatics, &c. Suffice it to mention that they contain the pith of most of the cases likely to arise. Where justices exceed their powers of jurisdiction they are amenable to the High Court writs of certiorari and prohibition (for acts of commission or to ascertain the reasons for any given decision) and of mandamus (for those of omission refusal). The Review of Justices Decisions Act 1872 is important as empowering justices to embody their reasons by swearing and sending up affidavit for use of the High Court upon appeals. Again, justices are subject to a civil suit at the instance of an aggrieved party on such grounds as lack or excess of jurisdiction, or partiality, bias, or other unreasonable conduct in the discharge of their functions. On the other hand, they are expressly protected from vexatious proceedings by various Acts of Parliament, notably the Justices Protection Act 1848 and the Public Authorities Protection Act 1893, so that a plaintiff can only succeed where he can prove malice, both in fact, and in law-i.e., the absence of reasonable and probable cause; likewise, the lack or excess of jurisdiction; and, further, the litigant must pursue any of the above writs or remedies within six months, and in most cases be prepared to show that substantial injustice had been caused. is to be observed that justices, however, have no special privilege or licence to write and (or) talk at random (but are on a par with ordinary folk in so doing at their peril), and this point was well Mustrated in the comparatively recent case of Peter Walker and Sons against Dr Hodgson, chairman of Crewe licensing authority, in 1908. Justices who have acted reasonably (however erroneously) are almost always entitled to be reimbursed their costs out of the county or borough public funds. If justices take the initiative in taking action, though they do so in their magisterial capacity, they must proceed at their cannot use the county, city, or borough (as the case may be) public expense, and legal officials. The case where the licensing authority of Liverpool some three years ago proceeded on an information for criminal libel against the Liverpool Daily Post, and lost, is a good case on and illustration of this point. There are still several boroughs

[ocr errors]



who do not possess their own quarter sessions; in such cases the County justices have jurisdiction concurrent with that of the borough ones within such borough, unless, in those rare instances, where it happens to be a county of itself. Usually those cities and boroughs which possess their own quarter sessions have their own paid professional recorder, who sits with a jury, save in rating, licensing, and other special appeals, whilst the proceedings at county quarter sessions are carried out by a full bench of justices under the direction of a chairman (who is, in some few cases, as in London, a paid and trained lawyer) and deputy chairman, also sitting with a jury (with the exceptions above mentioned). The main utility of these tribunals (which hold a court not less than four and not more than six times in one year) is to relieve the congestion of work at assizes on the Crown side, though it is true some few charges-e.g., murder-are not within the jurisdiction of quarter sessions, whilst in some other cases they possess special and occasionally exclusive jurisdiction-e.g., in rating and affiliation appeals. The appointment of stipendiary magistrates is regulated by an Act of 1863 (now mainly incorporated in Municipal Corporations Act 1882): any town or city of 25,000 inhabitants or more is, by the instrumentality of its council, entitled to petition the Crown, through the Home Secretary, to appoint a stipendiary, and the petition in invariably granted upon terms therein set forth, subject to the Home Secretary's approval : the council has no power to nominate the appointee, but perhaps indirect pressure to this intent by way of suggestion or recommendation is generally brought to bear upon the right quarter. In connection with the attack on the Lord Chancellor, with regard to his alleged partiality for Conservative candidates for the magistracy, made in April and May 1911 by the Honourable Neil Primrose and others, a question was asked in the House of Commons of the Home Secretary by another member as to the cost of abolishing unpaid magistrates and substituting stipendiaries everywhere. The reply was that, apart from the additional cost to the country, the proposed remedy was quite impracticable, for, in many, if not most (especially rural), districts, neither the amount nor the importance of the work would justify the stepan answer with which everyone must agree, bearing in mind that our legal system is so largely and rightly founded on Roman law, in which the administration of the law was not left exclusively to the stipendiary hierarchy of lawyers, and this is in keeping with our legal presumption that every subject knows the law and must assist in not only keeping, but causing it to be respected "in the King's name," regardless of the question of being paid for it. With regard to the modern popular phrase, "the great unpaid,' as applied to magistrates, it is of interest--perhaps archaic-to recall that at one time--namely, from the reign of Richard II. and (nominally) until 1855-justices were not honorary, but

[ocr errors]

stipendiary, for they were entitled to draw the munificent salary of four shillings by the day for the time of sessions," though, of course, the statute authorising this day wage had long fallen into desuetude. One may conjecture that whilst it remained in force it insured the regular attendance of a very full Bench, especially as there does not appear to have been any scale of fines for irregular, erratic, or unpunctual attendance, nor for the perpetration of jests or obiter dicta. There is this great point of resemblance between the decisions of justices and "the laws of the Medes and Persians, which changeth not"-namely, that when justices have once acted or adjudicated—and even although they themselves at once notice their error-they cannot treat their decision or act as a nullity, and proceed to start afresh, nor can any other set of justices do so, unless and until the act or adjudication had been first quashed with much pomp and circumstance (and incidental expense) by the High Court, all of which serves emphasise the care necessary in selection of justices as "fit men,' the care with which they should act before reaching a decision, and, lastly, the responsibility which rests upon the magistrates' clerk, or clerk of the peace, and, we should add, that other officer of the court, the solicitor and advocate, in guiding the conduct of the court. That a jurisdiction which deals with the liberties of millions of His Majesty's erring subjects, in their every-day life is capable of improvement, admits of little argument, but that the right way to effect this is not by inflammation of party passion is a self-evident proposition. Nothing but improvement founded on actual experience and the loyal support and co-operation of all whose work in any way brings them into contact with summary jurisdiction can conduce to more satisfactory working.



Mr. SANFORD D. COLE (Bristol) had prepared the following paper, but, owing to want of time, it was not read :

The Maritime Conventions are chapters of a code which, in days to come, will be the one law for shipping throughout the world. They are the commencement of an international code. They are an agreement amongst the nations for the unification of the rules of law respecting collision and salvage. The international conferences which have settled the terms of the conventions have demonstrated that a universal law is possible. That is a great point. The conferences have, however, done more than this. Not only have the two subjects of collision and salvage been dealt with, but others have been discussed with a view to further conventions being agreed upon. Thus other chapters will presently be added to the international maritime code, and perhaps, now that the great work is fairly started, progress may be more rapid. It has required many years, first of informal discussion at conferences of the International Maritime Committee, and afterwards of official debate at diplomatic conferences between delegates of the Powers, to arrive at the present stage. The most recent official diplomatic conference took place a year ago at Brussels, when there were present the delegates of twenty-four countries, including all the principle maritime nations. At that conference the two conventions on collision and salvage were signed, and progress was made with the consideration of the drafts of two other conventions, one of which relates to the limitation of shipowners' liability, and the other to maritime mortgages and liens. The procedure adopted at the conferences is that the conventions, when finally settled, are signed on behalf of the nations represented, subject to ratification by the various Governments. Before ratification each country makes such changes in its national law as may be necessary to bring it into accord with the international rules contained in the conventions. The two conventions already signed are based almost entirely on British law. Therefore the amendments which it is necessary to make in our law of merchant shipping to enable effect to be given to the conventions are very slight indeed. The Bill which was introduced into Parliament in May last consists of some half dozen sections only. The Bill originated in the House of Lords. It was read a second time in that House on the 15th Aug., and it is understood that the remaining stages will be proceeded with during the autumn session. Pending the passing of this measure the ratification of the conventions by this country stands over, but there is no reason to anticipate any hitch. The commercial and legal aspects of the questions involved have been thoroughly examined and discussed during the long process of the evolution of the conventions. The two conventions which have been finally settled have been agreed to by practically all concerned, and in a sense the Bill is a mere formality. In several continental countries the conventions have been ratified already. The principal change which the Bill proposes in our law of collision is as to the rule regarding the division of the loss where damage is caused by the fault of both ships. From a remote period there has been a special rule in Admiralty different from the rule of common law. Where parties are both blameworthy the principle of the common law would be to let the loss rest where it fell. The Admiralty rule, on the contrary, divides the total loss between those who contribute to it. For a long time there was a question whether the loss should be apportioned according to the degree of fault, but eventually it was settled that the loss should be divided equally, irrespective of which was the more to blame. Now it is proposed, in accordance with the terms of the international convention, that the liability shall be in proportion to the degree in which each ship was in fault, unless it is not possible to establish different degrees of fault, when the apportionment will be equal. The present British rule of invariably dividing the loss equally is productive of anomalous and undesirable results, and the proposed adoption on this point of the continental law

seems to be generally regarded with favour. In the admirable speech in which he moved the second reading of the Bill, Lord Herschell mentioned that France and Germany adopted this proportional rule so lately as the year 1900, and it is stated to work well in the countries in which it is established. The Bill also proposes to make a slight alteration in the rules governing the recovery of damages for personal injuries, and to abolish certain statutory presumptions of fault at present_attaching to breach of the regulations for preventing collisions. Regarding salvage the changes will be unimportant, except on one point, as to which there is a general provision applying to both collision and salvage. This is that a maritime lien shall in general be limited in duration to two years. At present our law imposes no limit of time, and a lien may remain effective even against a subsequent mortgage or purchaser for value without notice. This alteration also seems desirable. There is one article of the collision convention which has been specially dealt with. It is to the effect that the ship's liability for damage caused by collision shall attach where the collision is caused by the fault of a pilot compulsorily employed. Under British law there is at present an exemption from such liability. At the last international conference it was arranged that it should not be obligatory to give effect to this article until the international convention regarding the limitation of liability of shipowners, which at present is only in draft, had been settled. Consequently the Maritime Conventions Bill contains no provision for the amendment of the Merchant Shipping Act such as will be necessary to give effect to this particular article of the collision convention. It happens, however, that another chain of circumstances has been developing in the direction of the making of this alteration in our law. Another Parliamentary Bill, recently introduced, having for its object the remodelling of the whole of our pilotage laws, definitely proposes this change. It has been recommended time and again by committees which have inquired into the question, and on the whole it seems not unlikely that effect may be given to this article of the collision convention without so long a delay as would be involved in waiting until the convention on shipowners' liability has been signed. It is to be hoped, however, that progress will be made with these other conventions now in draft, and also with a gradually widening scheme for the unification of maritime law. In this connection the position of our overseas dominions deserves remark. The Bill at present before Parliament is drawn so that it will apply to all His Majesty's dominions, except Canada, Australia, New Zealand, South Africa, and Newfoundland. I venture to think that there is ground for saying that communication between the Mother Country and the colonies on matters such as those dealt with in these international conventions mig't be carried on to a greater extent than appears to have been the case up to the present. Opportunity for discussion on these matters does not appear to have been taken advantage of at the recent Imperial Conference. On these points, however, I do not dwell in detail. Nor do I speak now of the particulars of the draft conventions which await further discussion and adoption. There are many points where one subject overlaps another. The whole problem is complex, and, associated as it is with the sea commerce of the world, its importance is great and far reaching. I am content for the present to have called attention to the subject with the object of increasing the number of those who will follow with interest the course of events in regard to these international conferences and conventions.


A paper by Mr. J. F. W. JACQUES (Newcastle), as follows, was also not read owing to want of time :

In the brief space of this paper I can only touch upon a few of the many cases in which women are dealt with by our laws and customs in a different manner to that in which men are dealt with, and I propose to refer only to the following subjects: (1) Children, (2) intestacy, (3) divorce, (4) income tax, and (5) Parliamentary franchise. Other interesting subjects are: Property, personal rights, marriage, factories and workshops, education, professions, insurance, and punishments. On each of these one could write long and interesting articles, but I must leave these and proceed to the five subiects I have chosen.

As to the Children.-We must go back to the feudal system to find the reason for the extraordinary position of woman as regards her children. The father was lord not only of his wife, but also of the children of the marriage-and not only lord, but absolute lord. He had the most complete control over them. He had the sole right to their "custody-the mother had none. Even at the present day she has none during the lifetime of the father; and she had not even a voice in the appointment of guardians of the children, and the husband could appoint whom he would as guardian, and this guardian could not be ousted by the mother. În 1886 the Guardianship of Infants Act was passed, and it provides for a mother to be guardian of the unmarried infant children after the father's death jointly with a guardian (if any) appointed by him, and, if none, then their sole guardian. She also has power to appoint a guardian who will, on the death of the father, act jointly with anyone appointed by him. Power is also given to her to appoint someone to act as guardian either with the father or as sole guardian; but that is an empty power unless it can be most clearly shown that the father is not a fit person to be the sole guardian, as the court is not at all willing to displace the father as guardian and requires very clear evidence to prove that he is unfit to have the custody of his children. All this is one step in advance of the feudal times; but the father may, of course,

[ocr errors]

appoint someone who will act jointly with the mother, but with whom it is impossible for her to work smoothly and for the children's real benefit. An excellent reference has been made to the world of nature by Mrs. Emmeline Pethick Lawrence. She says, after referring to the old principle that woman is a piece of property owned by man: "We have only to consider, as an illustration of this principle, the law that sees in the father of a child the one and only parent. The children born in wedlock are solely his; he has complete control over them; he can take them away from the mother if he chooses. They are his alone. Why? Because the mother is his property as well as his wife. In the world of nature, and also by the human law of property, there is no doubt as to which of the parents in the animal world the young belong. The calf belongs to the cow, the chicken to the hen, and the foal to the mare. And, legally, the calf belongs to the owner of the cow, the chicken to the owner of the hen, the foal to the owner of the mare. Children by need and by nature belong to the mother, and by law to the owner of the mother. It is not as joint author of his children's being, not as father, but as the holder of woman-property, that the man possesses exclusive parental rights." Then with regard to the question of the religious faith in which the children shall be brought up it is the father who settles this; the mother has, by law, no say whatever in the matter. Her husband is, say, a member of the Church of England and she of the Church of Rome. Before she is allowed to marry him he must, by the law of her Church, agree to any children of the marriage being brought up in her faith. But, though he be bound by promise and deed, he need, under our laws, not keep his part of the bargain, but can have the children brought up regardless of this promise or deed. And this leads to many breaches in the family life, for, too often, the father considers that as there is no legal there is no moral obligation upon him, and he simply flings his promises to the wind. The wife has, legally, no voice whatever in the religious upbringing of the children, although if she does not do it, then, in the majority of cases, there is no religion taught at all. If the father enters into a special agreement under which he provides for the mother to have the custody of the children this will bind him (see Infants Custody Act 1873). Then as to the cost of maintaining the children of the marriage; the father is primarily liable for this. And even if the mother has private means, she is in no way liable to maintain them unless they actually go into the workhouse. Then, again, the law as to illegitimate children is in many ways strange. The mother of an illegitimate child can, on proving to the court, with corroborative evidence, that A. is the father of the child, obtain an order from a magistrate under which such father can be made to pay not exceeding 5s. a week for its maintenance until it is sixteen years of age or dies under that age. She can also recover the expenses she was put to at its birth. No one can take the child from her; the father in such a case has no very keen desire to have the custody of it, or, indeed, as a rule to hear anything at all about it! This, no doubt, is the reason why she has the right to keep it. But, although no one can take away the child from her, yet no one can compel her to keep it or to pay the guardians or anyone else for its maintenance. But now comes in the strange part of the case; if she marries, her husband becomes liable to the guardians for its expenses of maintenance in the workhouse, and, should her husband die or go away, she becomes liable to the guardians for its expenses. If a man or a woman dies intestate, leaving children of a marriage and also illegitimate children, the former share the estate, but the latter take nothing. If, on the other hand, the man or woman should leave anything to the illegitimate ones, they have to pay a 10 per cent. duty to the Inland Revenue authorities on the gift. Why? It was not the child's fault that it was not born in wedlock, and it is no stranger-in-blood to its own father and mother even though they were not married. Again, if one illegitimate child leaves anything to its illegitimate brothers or sisters, they also have to pay a 10 per cent. duty! I have in my own experience had a case in which a man lived with a woman as his wife and had a family. The children were brought up most respectably, and in due course the father died leaving his property to the woman and the children. The 10 per cent. duty had to be paid. Then, as each one died leaving his or her share to the survivors, the 10 per cent. duty had to be paid, until, so far as my recollection serves me, each £100 had dwindled down to about £50 or £60, solely through the payment of duties. The law as to children clearly wants amending: The mother should have equal rights with the father over the children both as regards the religious question and as regards custody and guardianship. On the other hand, the mother should be made equally liable for the children's maintenance, whether in the workhouse or elsewhere. And, as to illegitimate children, provision should be made for, at all events, acknowledged children who are illegitimate to share equally with the others (i.e., those born in wedlock) in case of an intestacy; and, in the case of a legacy or other gift or bequest to an illegitimate child, the duty should not be what amounts to little less than a robbery-viz., one-tenth of the whole-but should be calculated at the same rate as the duties payable by the legitimate ones. Where is the difference between them? None of them have done anything to be so punished or favoured! Surely, when these laws were made there was no idea that they would create less immorality! Such an idea could not have been in anyone's mind! And yet, if not, what was the object of them? Who in the world, when about to commit immorality, considers the question of what duty the possible child will have to pay, or how it will be treated in years to come if its illegitimacy is discovered? Ralph Thick

[ocr errors]

nesse says: At present, law and custom, often backed by religion, say to a woman: If you have an illegitimate child, you will be treated as an outcast; every means will be taken to prevent your earning a living to support it; difficulties will be put in your way if you want to leave it any property when you die; most often your innocent child will be treated as an outcast like yourself; and if you put it out of its misery you will be condemned to death as a murderer.

[ocr errors]

As to Intestacy.-There are several unfairnesses and inequalities in our laws and practice relating to intestacy. Take the important question relating to land. The feudal rules (altering the Saxon one under which the land was divided equally amongst all males in the same degree in the family) provided that all the freehold land should pass to the eldest son (or brother), as he would be the most likely male to properly carry out the military service required from the holder of the land. There is no reason for continuing this practice except where there is a title and a mansion to maintain, but the rule still remains in force. The widow is certainly entitled to dower-i.e., one-third of the rents for her lifeunless, indeed, it has been barred; but in the case of a woman dying intestate and leaving freehold property and a nusband and a child capable of inheriting, the husband takes the whole of the freehold property for his life. Why should there be this inequality either as regards the exclusion of the daughters or as regards the small dower which the wife takes? And she may be excluded even from that by the insertion of a few words in the original deed of conveyance to the husband. Then, again, if a chua dies without leaving a widow or issue, the father takes everything which such child possessed, and the mother is entirely excluded. And, if the father is dead, the mother only shares the personal property with her other children, and she gets none of the real property unless there are no children and no heirs on the father's side. Once more,

if a man dies intestate leaving personalty and a wife and child, the wife only takes one-third and the child takes two-thirds; whereas, if a woman dies leaving personalty and a husban and child, the husband takes everything. If an intestate (man or woman) dies leaving personalty and only a father and mother (with or without brothers or sisters), the father takes everything; but if such intestate dies leaving only a mother, brothers, and sisters, the mother merely shares the estate with the brothers and sisters. Under the Intestates' Estates Act 1890, if a man dies intestate leaving property worth only £500 or under and a wife, and, say, father and mother, but no issue, the wife takes all; but if the estate is worth over £500, the wife gets £500 and a share of the remainder, the rest going to the father. The mother gets nothing! But should he leave his wife, but no relations, surviving him, a most cruel thing happens; she certainly gets her £500 and a share of the remainder, but the rest goes to the Crown! Why? There seems no reason whatever, so far as I have been able to discover, why the law should not be altered so as to place the woman in, at all events, as good a position as the man. In most cases she requires the property far more than the man does. It is, in my opinion, no less than an outrage on women, and the matter ought to at once be dealt with. It is very easy in all these cases to see that the laws were made by men for the benefit of men. We have to go as far back as the reigns of Charles II. and James I. to find the statutes relating to these unequal rules for distribution, modified only in a fractional degree by the Intestates' Estates Act 1890. The foregoing remarks, of course, relate to property not included in a will or marriage settlement.

As to Divorce.-No doubt the present unfair and unequal laws and practice with reference to divorce arose from the fact that in the olden days the wife was looked upon and actually treated as a part of the husband's private property and as his servant, and he could recover damages from anyone having immoral intercourse with her. As, however, she was his property and servant, she could not recover any damages from a woman with whom he chose to have immoral intercourse. At the present time a husband in a suit for divorce joins as co-respondent the man who has committed adultery with his wife, and claims damages from him; but the wife is not allowed to join as co-respondent the woman with whom her husband has committed adultery, and cannot recover damages against her. The Matrimonial Causes Act, passed over sixty years ago, is still in force-slightly amended by the Act of 1884. This was an Act drawn and passed by men unaided by women, although they were in a sense far more affected than were men. A man can obtain his decree by merely proving to the satisfaction of the court that his wife has been guilty of adultery. But the woman has she so light a task? No! She has to prove that her husband has been guilty of incestuous adultery, or of bigamy with adultery, or of rape, or of sodomy or bestiality, or of adultery with cruelty, or adultery with either (1) desertion for two years without reasonable cause, or (2) desertion by reason of not complying with a decree for restitution of conjugal rights. The only possible reason or rather excuse that can be assigned for this grossly unfair state of things is the old (and now, I am thankful to say, nearly worn-out) idea that man is so infinitely superior to woman! No doubt the guilt is more often and more easily discovered in the case of the woman, for the man has far more chance of being unobserved than the woman, and it is far more easy for him to commit this sin undiscovered than it is for the woman. The result of the sin in the woman's case may be very terrible for the home, whereas in the man's case there may be a dozen results without its affecting the home in any visible manner whatever but that is no reason or excuse for treating the woman on any different footing to the man - or rather for treating the man more favourably than the woman.

The moral tone and actions of the man should be equally pure with that of the woman, and her feelings should be equally considered. Because a man happens to be in other respects kind and considerate, there is no reason why the wife's feelings should be allowed to be outraged or why she should be compelled to remain his wife. The fact that there might at first be a larger number of divorce cases is no reason for continuing a gross injustice to woman. opinion, and in the opinion of many people in the present day, the effect would be that the moral code of man would vastly improve and that the number of unfortunate women on our streets would, as

In my

a consequence, appreciably decrease. As the law now stands, a man may become the father of a dozen illegitimate children during the marriage and yet go scot-free except for some weekly payments; but let his wife become the mother of only one child not her husband's, and he can drag her through the publicity of the Divorce Court and get quit of her for life. It is a scandalous state of affairs, and whilst the law as it stands discourages immorality on the part of the wife by the heavy penalty it imposes upon her if her sin is discovered, yet it actually encourages immorality in the husband by treating the satisfying of his selfish and carnal desires as quite an innocent act and undeserving of any punishment whatever beyond a possible penalty of a few shillings a week to the wretched woman whom he has ruined and who is left to bear the burden and shame of it all. The reply may be given that it is quite open for the woman to apply to the High Court for a decree of judicial separation on merely the ground of her husband's adultery, or his cruelty, or his two years' desertion without reasonable cause, or by reason of his refusal to comply with a decree for restitution of conjugal rights. That is quite true; but a judicial separation leaves a woman a wife and yet no wife, and almost certainly more liable to immorality than if she were divorced. I am fully aware that here I am treading upon the verge of a very controversial subject-viz., how far a divorced woman is, from a religious point of view, entitled to marry again; but we are dealing with this matter now from a legal, not a religious, point of view. question of immorality is quite as much one for lawyers as for ministers of religion, so I am not going outside my sphere in bring ing that question into this paper, and I say most emphatically that, leaving the religious aspect out of the case, a woman is far less likely to lead an immoral life if she is divorce than if she is only judicially separated. But, whether this be so or not, I say with equal emphasis that she should, equally with a man, be given the right to choose whether she will ask for a divorce or for only a judicial separation on the one ground of adultery, without the necessity of proving desertion or cruelty by the husband. When one tries to realise the lives of quiet suffering-sometimes not only mental, but actual physical suffering-which many hundreds-nay. tens of thousands of our fellow-country women are leading in this so-called "free land of ours, it does strike one at all events, it strikes me, and very forcibly, too!-that we lawyers ought to exert every effort to see that every possible justice in every possible direction is granted or extended to women-the mothers, sisters. wives, or daughters of some one or other.


As to Income Tax.-A wife's income is, for the purposes of Inland Revenue, taken as being part of the husband's, and, even where the husband has no income, the income tax papers are made in his name, and any returned income tax is paid to him unless he signs a request to the commissioners to pay it to his wife, to whom it of course belongs. There is no reason for this since 1883, when the Married Women's Property Act came into force, under which the wife takes her own income. If a wife earns her income, she may have it assessed separately from that of her husband if their joint incomes do not exceed £500, but the general rule above given is most unfair, and often puts a woman into a very awkward position. She ought to be allowed to make her separate return and to receive any rebate which may be allowed without her husband being brought into the matter at all.

Parliamentary Franchise.-This question, although bordering upon politics, can, fortunately, be treated entirely apart from them. At the present time no woman has a vote for a candidate for Parliament, however much property she may own or however large may be her contribution to the revenue of the country in the form of taxes. But a Bill-the Conciliation Bill-consisting of two clauses has been read a second time in the House of Commons, ani time is, I believe, to be given in the autumn for full discussion on those two clauses. The clauses are: "1. Every woman possessed of a household qualification within the meaning of the Representation of the People Act (1884) shall be entitled to be registered as a voter, and, when registered, to vote for the county or borough in which the qualifying premises are situate. 2. For the purposes of this Act, a woman shall not be disqualified by marriage from being registered as a voter, provided that a husband and wife shall not both be registered as voters in the same Parliamentary borough or county division." I do not think that this Bill goes far enough. and for this reason: No woman who is an owner of property, unless she occupies it, will be included in its terms; nor will a woman graduate of an university which returns a member of Parliament. Those women on the voters' list at the present time presumably get their votes on the principle that they ought, as occupiers and therefore ratepayers, to have a voice in the election of those who impose the rates. Surely you do not go far enough when you limit the proposed Parliamentary franchise to ratepayers! Why should only ratepayers be able to record their votes for those wh impose the taxes? Surely common sense suggests that, if those who pay rates may vote for those who impose the rates, those who pay the taxes should be allowed to vote for those who impose the

Sept. 30, 1911.]

[merged small][merged small][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][merged small][ocr errors][merged small][merged small][ocr errors][merged small][merged small][ocr errors]
[ocr errors]
[ocr errors]


[ocr errors]


There are now and always will be men who act in an unchivalrous manner to women, but I hope they are still in a hopeless minority, and I do not fancy that their numbers will be swelled to any appreciable extent when a woman is allowed a Parliamentary vote or even a seat in Parliament-if she can win one! I dismiss entirely from my mind the acts of the "extreme apostles" of the cause, and for the simple reason that no fair-minded man or woman ought to allow a question of principle to be affected by the "outrages committed by a few extremists. I do not for one moment uphold these extremists, but I am very sorry for them, and, in my own mind, I make the very greatest allowances for them in what they have done. I should not grant this suffrage because of those excesses, but, on the other hand, I should not withhold it because of them and thus punish the deserving many for the illadvised but well-meant acts of the few. It savours too much of petty revenge. Neither can I see that the committing of these excesses is any reason why the fitness of women taxpayers as a class should be questioned. I maintain that this suffrage ought no longer to be withheld, and, whenever I think of it, I honestly confess that I feel that one ought not to be in any way surprised at some of these high-spirited women occasionally forgetting themselves and doing or saying things which so unfortunately turn away some people-narrow-minded I call them-from the very cause which these, at the very worst misguided, women are doing their utmost in, from their point of view, the very best way to push to a successful issue by keeping it prominently before the country. Women are expected to obey the laws of our land, and surely they ought within certain limits to have a voice in framing those lawsor, at all events, in electing those who are going to frame them. It is to his interest, and, indeed, it is a man's duty, to see that justice is done to them, and it is to his interest to secure the benefit of women's wits and ideas and judgment. If only men would realise more how invaluable is the opinion and counsel of women on many-on most-subjects, they would be more ready and eager to admit them into their close associations and to see that they have at all events an opportunity of expressing their views and ideas on many subjects, from the discussion of which they are now precluded, although they often are far more suited than men to enter into them and deal with them. To sum up what I have far too briefly (considering the importance of the subjects) referred to: I consider that alterations, amendments, or extensions should, as quickly as possible, be made in the following directions, viz. : (1) To give to the mother the same rights of custody, guardianship, and religious upbringing of the children as the father possesses; (2) to increase the amount of the weekly payments which a magistrate may order a putative father to make to the mother of his illegitimate child for its maintenance; (3) to reduce the rate of duty payable by illegitimate children in respect of pequests to the same rate as that payable by a child born in wedlock; (4) to legitimatise illegitimate children by the subsequent marriage of the father and mother; (5) to make a mother liable for the maintenance of her children in the same manner in which the father is liable; (6) to alter the rule excluding illegitimate children from sharing the parents' estate in case of intestacy, by placing illegitimate children who have been acknowledged by both parents on the same level as children born in wedlock; (7) to alter the law of inheritance so that all children share equally, and the surviving wife is placed in as good a position as regards the father's or a deceased child's estate as the father, if he survived the wife (or child), would be as regards the wife's (or child's) estate or, at all events, to give him no more favourable terms than she gets; (8) to place the wife on an equal footing with the husband as regards facilities for divorce and grounds for obtaining a decree; (9) to treat a wife's income in every respect as entirely separate from that of her husband, including the question of income tax payable or recoverable in respect thereof; (10) to grant to women the Parliamentary franchise as provided in the Conciliation Bill now before Parlia ment, but extending it to (a) owners of freehold, leasehold, and copyhold property, whether occupiers or not, on the same lines as the franchise is granted to men owners of such property, and (b) to women graduates of those universities which return members to Parliament.

taxes! And yet the proposed Bill, although it is a great advance in the right direction, stops short at a most important point in not extending the franchise to women owners of property as owners, in the same manner as men owners now have their votes as owners, and to women university graduates. The cry of no taxation without representation" should apply equally to the women who pay taxes as to the men who pay them. A few cases of the unfairness of the present state of affairs suggest themselves to my mind--and these, with many others, are within my own knowledge. 1. A widow lady, almost, if not quite, a millionairess, with a large estate and employing a large number of indoor and outdoor servants and labourers of various sorts. Her gardeners, coachman, chauffeur, labourers, &c., have their votes at the various Farliamentary elections. She has none, although the proper government of the country affects her in most respects at least as much as and in some respects more than it does them. 2. A married woman of moderate independent means, who lives in her own house and manages everything and pays everything, and is a good business woman; her husband, of course, has no vote, as the house does not stand in his name. Her gardener has a vote. She has none ! 3. A single lady, living in a small flat-an excellent and capable business woman of independent means; always at work on committees, &c. The lift porter has his vote. She has none! 4. A hard-working, poor woman, whose husband does no work all day because he is idle and drinks. She works and keeps things together and looks after everything, and takes the cottage in her own name. He, the loafer, would have a vote if the cottage were in his name, but, although it stands in her name, she has none! And I could give many such cases from my own knowledge, and could also draw many pictures on the reverse side showing how many incapable men have a vote, and their capable wives, who manage their own separate properties, have no voice in the election of the men who are going to impose taxes which they-those voiceless women-will have to help pay! Some people claim that "the physiological distinction in sex makes women mentally and morally unfit to vote for a Parliamentary candidate and is sufficient to warrant the vote being withheld from them. Why, then, in spite of that distinction, should women ratepayers be considered mentally and morally fit, not only to vote for candidates for a city or urban or other council, but also to stand as candidates for a seat thereon and even to occupy the chair at the head of such council? Women are no longer chattels," as they used once to be regarded, although I know many so-called men wish that they were! They are now men's companions in every sense of the word, including the intercourse of thoughts and ideas. They are our equals in many respects, our superiors in some, and, no doubt, our inferiors in others. The fact that they are physically weaker does not, in my opinion, bear at all upon the subject; rather, indeed, it strengthens my views that men ought to take a pride in always being chivalrous and gentle to women-even to the poorest and the lowest-and to grant equal justice to them and not keep it entirely-or chieflyfor their own sex. Then as to the question of the university graduate vote. The only principle which I can think of upon which this is granted is that the graduate qualifies himself for it by successfully passing the examination required for the degree. If this is so, why should the vote be limited to men? If the qualification is the passing of the examinations, why should women graduates not be favoured equally with the men? Reason says, Give the vote to all graduates"-the present law says, 'Limit it to men graduates.' The law ought to be brought into line with reason! It is admitted that there is "need for the help of women in several departments of administration. What I have said on the subjects of divorce, children, and intestacy bears this out, but there are many other matters in which their help would be invaluable Factories, shops, education, marriage, death rate of infants, waste of child life, wages of women, care of the aged poor, and others. It is said that the granting of the suffrage to women would probably be followed by a demand for seats in Parliament and for the appointment of women as Ministers; but I would ask, Why should not such a demand be granted? Nay, why, indeed, should not such a grant accompany the grant of the right to vote? At the present time any woman may offer herself for election as a member of a city or borough council or of an urban or rural district council (provided, of course, she has the necessary qualifications); she may even be elected as a mayor of a town or a chairman of such a council. But how many women, as a matter of fact, do offer themselves for election? A very few indeed! But when one considers the years which it takes a candidate nowadays to woo a constituency successfully, and the strenuous work, both mental and physical, which such wooing involves, there clearly can be no fear of our being overwhelmed with women candidates for Parliamentary honours, and I should consider that any woman who was successful in such a courtship would well deserve the honour of putting the magic letters "M.P." after her name, and would be of very considerable assistance in the House. I venture to say that it must appear absurd to any unprejudiced person that anyone can for one moment believe that the result of the granting of this suffrage will be " "the obliteration of the line between man and woman." And, surely, no man treats a woman with less deference than he used to do simply because she may now vote for a candidate for municipal honours! And why should he be less chivalrous than he is now when the time comes when she may vote for a Parliamentary candidate! It is not even as if elections were conducted as in olden days. Now the gentlest and most retiring woman may attend and record her vote, and is less hustled even than if she were walking down the street of some busy town.

[merged small][ocr errors][merged small][ocr errors][merged small][ocr errors][ocr errors][ocr errors][merged small][ocr errors][merged small][ocr errors][merged small][merged small][ocr errors][ocr errors][merged small][merged small][merged small]



[ocr errors]


A number of votes of thanks brought the proceedings to a close. FESTIVITIES.

A smoking concert was given to the members on Monday evening. on the invitation of the Nottingham Incorporated Law Society, at the Victoria Hall.

A dinner was held on Tuesday at the Exchange Hall, the chair being taken by Sir Edward Fraser. who, in proposing the toast of "The Law Society," said that the system of legal education provided by the society was only in its infancy. In his opinion the future of the Profession depended upon the perfection of the education almost more than anything else. If folicitors were to keep ahead of those who attempted to poach on their proper domains, they could only hope to do so by showing themselves their superiors in education and training. Solicitors did not fear reasonable criticism, but they felt that the higher a man's position in the State the more careful and moderate he ought to be in the expression of his opinion, and certainly in the expression of censure which might or might not be deserved. The President returned thanks. Mr. Robert Ellett proposed the toast of "The Bench and the Bar." He observed that there had been an increasing tendency to criticism of judges. Accusations bad been freely levelled to the effect that their judgments were influenced by party and by class prejudice. These accusations

were totally unjustifiable, and it was a matter of sincere regret that they should have been made. Sir Ryland Adkins, M.P. (Recorder of Nottingham), returned thanks for the Bench, and Mr. Bernard Campion on behalf of the Bar.

A reception was given in the evening of Wednesday at Nottingham Castle by Mr. Henry Crewdson (ex-president of the Nottingham Incorporated Law Society) and Mrs. Crewdson; and on the same evening a performance was given at the Hippodrome, to which the members and the ladies accompanying them were invited by Mr. J. J. Spencer. On Thursday there was an excursion arranged by the Nottingham Society to "The Dukeries," luncheon being provided at Welbeck Abbey. Various manufactories were thrown open to inspection, and facilities for golf and for temporary membership of clubs were provided.

SOLICITORS' BENEVOLENT ASSOCIATION. THE annual meeting of this association was held at the University College, Nottingham, on Wednesday, the chair being taken by Mr. Robert Ellett, vice-chairman of the board of management. The meeting adopted the annual report of the directors, which stated that the association had now 4006 members, of whom 1271 were life and 2735 annual subscribers. Seventy-three of the life members were also annual subscribers. Legacies of £1000 had been received under the will of the late Sir John Hollams, in addition to his munificent gifts to the association in the past; £249 178. 10d. under the will of the late Mary Ann Wighton; £90 under the will of the late Mr. Charles Smith; £100 under the will of the late Mr. Cedric Houghton ; and a further £300 under the will of the late Mr. Robert George Abraham. Among the donations was the sum of £105 received from the Bristol Law Society, part of the surplus funds in connection with the Law Society's meeting in that city last year. During the year 223 grants were made from the funds, amounting to £5220, and the total relief given, inclusive of annuities from various funde, amounted to £5879 169. 8d. This sum largely exceeded the income from annual subscriptions and dividends.


DISENDOWMENT.-In your issue of the 8th July last is a communication from "A Solicitor" on the subject of "Disendowment " which appears to me to contain some unintentional misstatements of fact and some suggestions which from a fair and equitable standpoint do not seem to be tenable. It is admitted in this communication, as is a well-known fact, that tithes are payable not only to the clergy, but also to some of the laity; and it is suggested that Parliament might very properly deprive the clergy of this right to tithes without touching the rights of the laity to similar rights. All right to tithe, whether now in ecclesiastical or lay hands, had a common origin, and the laity have only acquired a right by the diversion of the tithe from its original purpose-which was to provide for the support of a body of men to teach the English people to fear God and keep His commandments. Dr. Arnold's remark, which "A Solicitor" quotes with approval, "that the only way there can be robbery of public property is to transfer it to private uses," is surely applicable to the lay impropriators; and it is singular that "A Solicitor " cannot see the injustice there would be in depriving the clergy of the right and at the same time leaving those whose title is tainted intact. If tithe were to be abolished in England, the laity as well as the clergy should both bear the affliction and loss; to select one class of the community and visit it with exceptional legislation and to allow another class to go scot free is surely not in accordance with British notions of justice-moreover, even if tithe be a tax, or a perpetual charge, its existence is taken into account in estimating the value of land subject thereto. To abolish it is, in effect, to make a present of the enhanced value which would arise from the abolition to the various landowners, and what would that be but diverting, as far as the clergy are concerned, public property to private uses, which Dr. Arnold called "robbery"? I must also take exception to the paragraph quoted from Bishop Weldon's book: "At the Reformation, the State, or the Crown acting on behalf of the State, took away large funds from the Church of Rome and transferred them to the Church of England, or, to put the case more accurately (?), took them away from a Church in communion with the See of Rome and transferred them to a Church not in communion with the See of Rome." That a person who is not a lawyer could make such a palpable blunder is perhaps not surprising, but that "A Solicitor" familiar with the law should give it currency really is astonishing; because every solicitor knows that neither the State nor the Crown acting on behalf of the State, ever did any such thing. Every student at law of one year's standing knows that neither the State nor the Crown can or ever did within the annals of constitutional history take away the property of one body and give it to another by mere word of mouth. In order to effect such a change a statute of the realm would have to be passed; but no such statute ever was passed—“A Solicitor will search in vain for any such statute. With regard to the changes effected from time to time in the public services of the Church of England, "A Solicitor," I am afraid, has a very crude idea. He says that under Elizabeth it was made a criminal offence to say or hear Mass, and yet the first Prayer Book of Edward VI. expressly provided a service for the Holy Communion, commonly called the Mass"; the Roman ritual of the Mass was abolished and an English ritual substituted. But let "A Solicitor" or any other person take the English Communion office at any stage of its development in the English

[ocr errors]

Prayer Book and compare it with the Roman office of the Mass, and he will see there is really hardly any substantial difference between the two, except that one is in English and the other in Latin, and one contains some invocation of saints which the other omits. To say "under Edward VI. Parliament forced the clergy to use the Prayer Book in place of the Mass is surely ridiculous, and if "A Solicitor" would carefully analyse the sentence, I think he would see its absurdity. When will people understand that "the Mass" is only another name for "the Holy Communion?" Did Parliament ever require the clergy to use the Prayer Book in place of the Holy Communion ? GRAY HOLMESTED.

COUNTY COURT STATISTICS.-In your comments last week on the County Court statistics, you give a list of the number of cases above £50 and above £100 respectively entered during the last six years, showing the decrease in each class of case, and proceed to argue that it is clear from these figures that no great desire exists to refer to County Courts for the settlement of large disputes. Whilst at first sight this seems a legitimate inference to draw from the figures you quote, I think a little more consideration will show you that in this case it is an erroneous one. As far as I know, very few cases are entered under sect. 64 of the Act-the section which admits of jurisdiction in large cases by consent. The cases over £100 are made up almost exclusively of two classes-first, equity matters, and, secondly, employers' liability cases; and for some years each of these classes of case has shown a tendency to decline. As regards the former, this tendency has been, of course, in recent years thared with equity matters in the High Court, and in the County Court there is an additional reason why this jurisdiction can never be popular, and that is that the amount of fees payable in this class of case are quite prohibitive in view of the small amount involved. As regards the latter, there has been ever since the Workmen's Compensation Acts a continuous fall in the number of employers' liability cases entered. According to the statistics published by the Home Office for the last year available (1909), the number of these cases has diminished since 1905 by 277. Taking your figures, the aggregate number of cases above £50 in 1905 was 3103, whilst those in 1909 were 2885, showing a decrease of 218; but, inasmuch as during that period the number of employers' liability cases, as above mentioned, had diminished by 277, and very few of these cases are for less tban £50, any inference that the number of cases entered under the extended jurisdiction is tending to diminish would be unsound. Certainly our experience in this by far the largest court in the country is that, so far from diminishing, this class of case tends to increase, and that in spite of the fact that the general volume of work has been growing less for some few years. In spite of all that has been said to the contrary, I have personally no doubt that the extension of the County Court jurisdiction in 1903 has been fully justified by the result, and that these cases are disposed of quite as satisfactorily as in the High Court, and, in most places, with considerably less delay and expense. W. H. WHITELOCK, Registrar Birmingham County Court.

[blocks in formation]

32. WILL-LUNACY.-An English subject domiciled in America and possessed of a small estate there died recently having made a will which has been there duly proved. A doubt has arisen on the will as to whether or not there is an intestacy with regard to a portion of the real estate. The beneficiaries under the will, and the heirs who claim under the intestacy, are all resident in England. To save litigation in the American courts, the cost of which would more than swallow up the portion of the estate in dispute, the beneficiaries and the heirs are willing to compromise. This would take the form of their uniting in a deed appointing a trustee with power to sell, pay the costs, and divide the surplus in shares. Unfortunately, one of the heirs is a criminal lunatic whose interest in the realty will have to be conveyed and his consent to the compromise obtained. He has no other estate, and his share in the arrangement cannot exceed £10. The cost of an application to the court under sect. 116 of the Lunacy Act 1890 for the appointment of a receiver with power to carry through the compromise would be far in excess of the £10, even if the court had jurisdiction, which is doubtful: (see sect. 108 of the Act, and the notes and cases in Heywood and Massey, new edition, 1911, p. 360). Can T. anyone suggest a way out of this irritating little difficulty

33. INCOME TAX DUTY REPAYMENT.-A legacy of £100 was bequeathed to an infant upon his attaining the age of twenty-one years, and the will provides that the income from the investment shall accumulate and be payable with the principal on the infant attaining twenty-one. The £100 is invested in railway stock, and the income tax duty has been deducted upon each dividend payment. The legatee is not liable to any income tax payment. The Inland Revenue authority has on behalf of the infant been applied to for the repayment of the duty, and refuse to allow it on the contention that, as the income is not expended, the duty is not recoverable until

« EelmineJätka »