IS THE LAW AN ASS ?- AND IF SO WHY?
By AMBROSE HOOPINGTON
But though elaborate ceremonial (to be tolerable) must be ancient, an ancient form of procedure or . an ancient law is not always inefficient or absurd. The opposite view finds favour with the ignorant who will impatiently exclaim "Fancy prosecuting the Com- munists" (or whoever they favour) "under an Act of 1848, passed before Karl Marx was heard of." Such criticism scarcely needs an answer. Obviously, laws passed a hundred years ago arc more likely to be out of date than those passed last year—but, if they are not out of date, there is no point in altering them. There are few things more pernicious than the continual re-enact- ment of laws which are reasonably good as they stand. If the new law is in similar terms to the old, the question at once arises whether a slight alteration in wording implies some alteration in the law. If it is substantially different, there will be still greater confusion, for every- body affected by it, and not only the lawyers, has to adapt his business to the altered law.
Such alterations may bring business to lawyers, but they do not favour them—most of all, of course, they dislike alteration of the rules of procedure. After all, it does not greatly matter what procedure a Court adopts provided everyone knows what it is. Lawyers are not unique in showing this conservatism : thus a marine insurance policy is usually expressed in language which to the general reader would seem gibberish, but which has been so frequently considered by the Courts that there can be no dispute as to the rights of the parties to it. Obviously the same merit attaches to such laws as the criminal statutes of 1861, which. have been con- tinually before the Courts. Such certainty is only • possible when, as in England, the Courts are bound by previous decisions. The system of case law has been contemptuously described as "guessing what Mr. Justice Smith will say from what Mr. Justice Jones said in a different case twenty years ago." A moment's thought will show that this is at least more satisfactory than guessing what Mr. Justice Smith would say if he was, completely unfettered by authority and rather apt to show off his cleverness by differing from his predecessors.
At the same time the preservation of ancient law can go too far. There does not seem to be any valid reason why the pre-Reformation statutes—there are only a couple of hundred pages of them—should not be repealed en bloc, translated into modern English and re-enacted, so far as they are required at all. It is exceedingly seldom that any of these early statutes, mostly in old French, are ever put into effect, but the occasions are generally important ones. There is something ridiculous yet shocking in the report of the Casement trial—the execution or acquittal of the prisoner depending on the grammatical construction of a statute passed in the reign of King Edward III. On the other hand, in the recent tithe litigation, the case of Swaffer v. Mulcahy provided an occasion for innocent-merriment, for the legal argument turned on the words bestes he gaignent sa terre, of which the only available translation seemed to be "beasts that gain their term," occurring in an ancient document, which according to some authorities was not a statute at all, but merely a statement of the law as it appeared to an intelligent writer of the period. This kind of legal argument must tend to bring the law into contempt.
A great deal of unjustified criticism is directed against another feature of Court procedure, which is wrongly supposed to show lack of understanding of modern affairs. Continually judges are quoted in the news- papers as asking such questions as "'What is Jazz ? " Most newspaper readers imagine this to be a form of misplaced humour, but in truth it is nothing of the sort. Judges have to ask these questions because, whatever may be their own experience, they cannot assume facts which do not form part of the world's recognised know- ledge and have not been proved in evidence. As a matter of fact, many of the things of which judges show judicial ignorance may very well be unknown to them, for there is no obligation, legal or moral, on a judge to read the cheap papers in which many of the phrases or words in question have originated. The readers of such newspapers are amused by such head- lines as : Judge asks : What is a "White Lady" ? Counsel explains : It is a cocktail. But then they are unfamiliar with the habits of judges. There is no reason why the judge who tries the case should not, like other elderly gentlemen, belong to a respectable club, where he can and does drink much better and purer spirit at a more reasonable price and under its proper name of gin, and neither he nor any other member need be concerned with the fancy names applied to curious mixtures by foreign waiters.
But even where ignorance is affected, the reason is not that there is anything undignified in judges under- standing slang or knowing about goings-on in second-rate night clubs, which it would be wrong for them to visit. On the contrary, judges in criminal cases take a par- ticular pride in showing their knowledge of thieves' language and explaining to a jury how one does an illegal operation, and other things of which they have no practical experierre. But the difference is that these are things admitting of no doubt ; whereas, if judges accepted all the statements which they at present .query, it would mean people being, condemned or having their cases decided against them on statements in news:.- papers that are probably wrong. For example, the police solicitor would be able to say, "The defendant admitted that he had drunk three cocktails, and, as the Court know's, a cocktail is an extremely powerful alcoholic drink —"— But; is 4t ? Most of us have been to cocktail parties at which the drinks were principally compounded of lemonade and water. And the only reason that cocktail-drinking sounds so wicked is that newspapers have thought fit to regale their readers with the subject, illustrated with the tragic fates of young women who left home and adopted the habit.
Still more misleading are the statements made in the papers about living individuals which it is to be supposed that their readers accept. For example; if a judge were not allowed to ask "Who is Charlie Chaplin ? "—or "Who is Greta Garbo ? "—he would presumably have to accept without evidence the further statements that they arc world-famous film-stars, that they are universally successful, that they have amassed immense fortunes, that they still command colossal salaries, and all the other statements which we read in newspaper paragraphs, but the truth of which is only known to their accountants or father-confessors. Of the "notorious facts" of which judges do take judicial notice, and accept without evidence, the one most frequently quoted in manuals of evidence is "that the streets of London are crowded and dangerous." There does not seem any present danger of this statement continuing to be accepted after it has ceased to be true.
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