and Fascism is undesired. In politics and in morals human nature has been trusted, but not too far. Thus is seen how, in law as elsewhere, a people, by long struggle after high ideals, attained a unique position and almost matchless influence in the world.

In the older lands and until recent times the progress to national maturity has been slow. But in recent years and in the present, the advance has been and is of almost kaleidoscopic swiftness. The general diffusion of knowledge and almost instant delivery of the world's news to every door, with the seemingly endless inventions to serve men's needs, have all contributed to this. As space is eliminated by the Radio and the Wireless, and distance dwarfed by the flight of the train, the motor and the aeroplane; as fortunes can seemingly be made,—and lost—overnight, so in some quarters is there a desire to bring welfare and safety to themselves and others by one swift stroke. And, at first glance, the swiftest and safest device is by legislation within a democratic state. But the inquiry may be pertinent," Are ideal conditions created in this manner?"

About two years ago there was published a verbatim report of an address given by the late Right Honourable Lord Moulton, former Judge and Minister of Munitions in Great Britain, who died in 1921, on the unusual theme of "Law and Manners." In it Lord Moulton, after dividing the field of human action into the three domains of Positive Law, Free Choice and what he called the Law of the Unenforceable, proceeded to illustrate the scope of each. By a little effort one can mentally visualize these three domains as lying side by side in space. "All three are essential to properly organized life." And in the changing conditions of life and society, one or the other is liable to be extended at the expense of the others. At the one extreme -that of Positive Law, the citizen is told: "You must" or "You must not "; at the opposite end is absolute Choice; and the intervening country might be called Duty or Public Spirit or Good Will, but is what he designated the Law of the Unenforceable,-the domain of Manners. The danger to this middle land arises from encroachments from the other two. For in some quarters there is a tendency to make Positive Laws to regulate everything, and in others to treat as subject to Absolute Choice all that is not regulated by Positive Law. Both encroach on the middle land, and in Lord Moulton's view, dear as are the other two, the real greatness of a nation is measured by the extent of its obedience to what cannot be enforced, -to self-imposed law. The strength of this principle,-no mere

1See the Atlantic Monthly for July, 1924.

ideal, was shewn when, at the sinking of the Titanic, the gentlemen said, "Ladies first," though law did not require it. In some cases, it is true, this middle land has fallen into discredit. Debates in the House of Commons are instanced where members, having no restraint but the unwritten rule, proceeded to say: "We have unrestricted freedom, we will use it to destroy debate." The result was that restrictions were imposed on debate and the old freedom was removed from those who did not exercise the moral sense which would treat it as a trust. Hence Choice, followed by legal restriction, had invaded land that was sacred,-the Law of the Unenforceable. So with the individual and so with the legislature, and Lord Moulton said: "The danger lies in that, by the growth of the democratic spirit, they have newly come into much larger powers and have not yet learned that power has its duties as well as its rights "; but he added that when they have become familiar with these powers they will be loyal in these larger fields as they have in the smaller. Tyranny is defined as the yielding to the passion to govern, and it leads to legislation both in its scope and in its nature that is not within the proper sphere of the legislature. The speaker did not fear to trust the people, but he feared the people would not see that trust and responsibility were reposed in them. So long as modern legislation tends to extend the area of Positive Law and to diminish. the area of action left to the individual himself, so long will a dread be felt lest this should check the growth of self-reliance, the sense of personal duty, and lead the people to feel that, if they obey the law, they have done their whole duty. The speaker might have mentioned the added dread one might well feel if laws are made which cannot be or at least are not, enforced, with the consequent disrespect in which the law would be held. Instances of this will at once occur to any mind.

These views may appear idealistic,-they partake also of the practical. Lord Moulton, as Judge and as able administrator, had rare opportunities to study what he there discussed and, with a proper regard to his proposals it would seem that the "danger from over-lawing," to which Mr. Gerard referred, would be lessened.

While the sphere of written law to serve and mould society has thus its limits, it is inevitable that modern life with its complex human relationships and mechanical devices, should be attended by an enormous volume of legislation. Aviation alone, an entirely new field, has in recent years made possible a special branch of

It is likely, however, that these and kindred laws will be simp

lified and made uniform while some will disappear. If democracy be defined as government by the people, the difficulty of avoiding legislation both vast and varied, is obvious. This is the more apparent where complex conditions exist that tend to weaken the support and confidence of the Government of the day. There are some, as Lord Moulton said, who seem to think laws should regulate everything; the pressure is often great and a desire for compromise felt as matter of policy; while the majority, perhaps from lack of tests of similar laws elsewhere, consent to the trial of an Act as a relief from real or fancied ills. A danger arises here, that the passage of a law is often easier than its removal even when the experiment fails or its usefulness ends. Acts may remain to encumber the statute book long after they have failed to be of service. Lord Buckmaster reminded us that the ancient method of Trial by Battle remained open to litigants in England until 1811, when a man, brought up on appeal for murder challenged his right of trial in this way, and as the right still existed, it was repealed in 1819.

If one were asked to cite specific conditions of legislation which have been, or might be, improved, there is seen at once the risk of crossing the threshold of Politics,-a thing to be avoided. With this caution in mind two or three instances may be given. First, there had always been a lack of harmony among the statutes of the various Provinces and between these and Dominion Acts. "The Conference of Commissioners on Uniformity of Legislation in Canada," and, "The Committee of the Canadian Bar Association on Comparative Provincial Legislation and Law Reform" have done more perhaps than all other agencies to give uniformity and symmetry to these Statutes and to improve, by drafting model Acts,-a service the value of which can hardly be overestimated. Again, there exists, in theory at least, a class of laws that tend to invade the privacy of individual life. The Spartans of old cheerfully consented to a sumptuary law,— as regards diet, and in time of war any nation might do likewise. In both these cases the citizen is subservient to a higher law-with the Spartans, to an ideal, and in case of war, to the national safety. Generally, however, such intrusion is regarded as the tyranny of a majority over the smallest minority. One writer has instanced laws to decide whom one should marry or what should be one's religion, and Hon. Mr. Gerard gave some humorous illustrations. Instances of varying degree of application will occur to different minds. Once again, there are laws in some lands, called paternal. The tariff is not in mind, but laws of internal operation, and these, it is claimed, run

athwart the economic law of laissez-faire or principle of "let alone," which says competition should have free play. Perhaps the future of such awaits the test of experiment. It is thought that, as financial stability is so dependent on the confidence of the investor, anything that weakens that confidence should be carefully considered before becoming law, as a form of tyranny could conceivably arise.

The foregoing instances are only suggestive, and others possibly more important will occur to those who have considered the subject.

Perhaps one could not do better in conclusion that to repeat appreciation of Mr. Gerard's address and to quote his pithy and sane exhortation: "These are real dangers to democracy avoidable by the exercise of majority restraint rather than majority power, and it is our duty as lawyers and administrators to point out the dangers which come from overlawing."

Winnipeg.

I. F. BROOKS.

TRADE UNIONISM AND THE BRITISH CIVIL SERVICE.-It appears that the British Government will no longer tolerate trade unions in the Civil Service. Mr. Winston Churchill recently announced in the House of Commons that the Government was convinced that it is contrary to public interest that associations of civil servants should be affiliated to outside industrial and political organizations, and will introduce legislation prohibiting the same. We learn that there are now in Great Britain some seven unions, numbering about 126,000 civil servants. They consist of (1) the Union of Post Office Workers; (2) the Civil Service Clerical Association; (3) the Post Office Engineering Union; (4) the Post Office Controlling Officers' Association; (5) the Association of Officers of Taxes; (6) the Civil Service Sorting Assistants' Association; and (7) the Temporary Civil Servants. A formidable array, this, of unions as well as of members. The Government takes the view that these unions have a bearing which is not consonant with that complete detachment from class strife and party politics so essential to singlehearted service of the State. Mr. Churchill's announcement has occasioned strong protest on the part of trade unionists in the mass; and the proposed legislation will have the vigorous opposition of the General Council of the Trade Union Congress. It is also stated that the Labour Party stigmatizes the move as "a part of the Government's general attack on trade unions."

567

HUSBAND'S LIABILITY FOR WIFE'S TORT.

The Law Journal has intimated that legislation may be introduced in England to relieve a husband from responsibility for wrongs committed by his wife. If such a measure should be passed it will put an end, in England, to a controversy which has been going on for almost half a century, both in England and Canada, with varying. and conflicting expressions of judicial opinion.

At common law the husband was a necessary party defendant to an action of tort against the wife, not because he was considered personally liable therefor but because, the spouses being one person in the eye of the law, the husband became entitled to the wife's property and he was therefore joined "for conformity." The fundamental principle of the common law is stated in a well known passage in Blackstone's Commentaries1 where it is said:

"By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated or consolidated into that of the husband; under whose wing, protection and cover, she performs everything. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties and disabilities, that either of them acquires by the marriage. . . For this reason, a man cannot grant anything to his wife, or enter into a covenant with her; for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself; and therefore it is also generally true that all compacts made between husband and wife, when single, are voided by the intermarriage. . . . If the wife be injured in her person or her property, she can bring no action for redress without her husband's concurrence, and in his name, as well as her own; neither can she be sued without making the husband a defendant."

There being no personal liability of the husband for a wife's separate tort, the death of the wife caused an action for that tort to abate as regards the husband, but if the husband died the action continued against the wife. Nevertheless, in the ordinary case judgment might be obtained against husband and wife jointly and execution issued thereunder against his goods.

1 Vol. 1, p. 442.