Evening Post. TUESDAY, MAY 29, 1928. THE POWER OF PREJUDICE

Evening Post, Volume CV, Issue 125, 29 May 1928, Page 8

Evening Post. TUESDAY, MAY 29, 1928. THE POWER OF PREJUDICE

«>_ Tlie refusal of the House of Lords to listen to Lord Astor's plea for a review of the testamentary law of England, especially in its relation to the rights of wives and children, was, as we pointed out last week, a singular, example of tlie obstacles which custom, ignorance, and prejudice may present to the plain demands of equity and common sense. Even in the days-when Conservative Governments are accustomed to introduce Socialistic measures—and the House of Lords still clings to the belief that whatever a Conservative Government does is right—there is no ground for surprise in its hostility to any proposal affecting the rights of property which has nothing, to recommend it but its own merits. But the mildness of Lord Astor's proposal and the auspices under i\>hich it was contemptuously rejected make an exception of this case. His motion did not ask' for a change.in the law of wills but merely, for the appointment of a Select Committee to consider the,subject. It was killed not by the blind "vis inertia}" of hereditary legislators jealously stickling for the rights of property but by the unanimous condemnation of three of the ablest men in the House, representing Labour, Liberalism, and Conservatism respectively, three, men whose intellectual superiors could probably not be found in any Legislature in the world, unless among the same class in the same Assembly, three of the Law Lords whose power would only be increased by the deepest cut that the reformer's knife might make at the hereditary principle.' It was the professional bias of .the Lord Chancellor, and two former Lord Chancellors —Lords Haldane and Buckmaster —that turned their light into darkness and made them blind leaders of the blind. If the light that is in thee bo darkness, how great is darkness! It was dark enough on this occasion to eclipse the whole House and run Lord Astor's mild plea for inquiry into the ditch. In the presence of so much legal learning it would be seemly for the layman to imitate the House of Lords and bow his head in respectful acquiescence if' the issue were one which legal learning could settle. But this is an issue on which neither legal learning nor legal acumen has much to say. As we showed in our previous article, the argument from history lends no support to the absolutely unrestricted disposition by will which is accepted by the English lawyers as one of the inalienable rights of man. The right to make an unnatural will was not regarded by the wisdom of tlie ancients as a part'of the natural order of things. The wise Roman law-givers set far too high a value on the family to tolerate such a doctrine. It is • remarkable, says. Sir Henry Maine, in his "Ancient Law," that a will never seems to have been regarded by the Romans as a means of disinheriting a family, or 'of effecting ,the unequal distribution of a patrimony. The rules of law preventing its being turned to such a purpose increase in number and stringency as the jurispru--dence unfolds itself; and these'rules correspond doubtless with the abiding sentiment of Eoman society, .as distinguished from occasional variations of feeling in individuals. It would rather seem as if the testamentary power were chiefly valued for the assistance it gave in making provision for a family, and in dividing the inheritance more evenly and fairly than the Law of Intestate Succession would have divided it. ■ • For centuries the same principle was followed in England itself. Dr. James Wilson writes on the point as follows in the "Encyclopaedia Britannica":— In both cases partial preceded complete power of disposition. The general opinion of the best authorities is that by common, law of' England a man could only dispose of his whole personal property if he left'no wife or children; if he left either wife or children he could only dispose of one half, and one third if he left both wife and children. The shares of wife and children were called their "pars rationabilis." This "pars rationabilis" was expressly in Magna Carta and was sued for by write "de rationabili parte." At what period the right of disposition of the whole personalty supersede^ the old law is uncertain. - Scotland, as Lord Astor pointed out, has stuck to the ancient doctrine, and with no thought of history or abstract right, but on the broad grounds of justice and common sense, some of the Dominions have reverted to it. It was not by legal learning or legal acumen, but b1" sheer lack of common sense, that the three learned Law Lords we have mentioned denied Lord Astor the inquiry he desired. Lord Hailsham actually said that, though there were some hard cases, there would be more if effect were given to Lord Astor's suggestion, which evidently was that the English Judges should be given the same discretionary power to vary an unjust will that our own Judges have. If, said Lord Hailsham, a man were determined to cut off his wife and family, ho would find a way of doing so,

I whatever the testamentary law. The proposition would entail the washing of a great' deal of dirty linen in public. The respect that .we had acquired for the late Attorney-General must *not prevent our saying that as Lord Chancellor he is not above talking sheer nonsense. It is of course only upon the testator's estate that, like the will itself, a Judge's discretion to alter it can operate. But the same remark applies to the Death Duties Acts, for instance, which supply far stronger inducements to evasion than a Family Protection Act and have been far more successfully evaded. And in the light of New .Zealand's experience the talk about "the washing of a great deal of dirty linen in public" appears- positively childish. In the course of nearly thirty years our Family Protection Acts have probably resulted in less washing of dirty linen than a single contested divorce case, and any mischief of that kind is an absolutely microscopic set-off to the immense contribution that these Acts have made to human happiness, and especially to the happiness of those least capable of righting the battle of life unaided. Lord Buckmaster's sophistry was, if we may say so, more sophisticated than the Lord Chancellor's, but not less fallacious. Lord Buckmaster disliked Lord Astor's underlying assumption that women must be dependent on men, and that men evaded their obligations. Men and women should boI'socially and economically equal, free and independent. It was quite enough for Lord Astor's case that some women are dependent on men, and that some men evade their obligations; and that is an assumption that even the least intelligent of Law Lords will hardly venture to dispute. That "men and women should be socially and economically equal, free, and independent" is an admirable aspiration, but what it has to do with the case we are unable to see. The true concern of legislators is not with ideal platitudes, but with bringing a very unideal world a little nearer to the ideal than it was before. And whether in an ideal or an unideal world, will Lord Buckmaster extend his doctrine of equality, freedom, and independence to include children? Like the other Law Lords, he Jias no thought for the child—a small, perhaps, yet, as Lord Astor may. reasonably contend, not a' negligible omission. On the whole Lord Haldane may be congratulated on having emerged with the least discredit from the opposition to Lord Astor's motion. He "doubted whether any Judge was capable of wisely varying wills," but if he knew that for about 23 years the New Zealand Judges have been doing it to the complete .satisfaction of the legal profession and the public his doubt and his opposition would surely cease. ;