Licence or lease?

As formerly a party, who might now find a remedy as a licensee, was left without a remedy because the only resource then known to his counsel was to force the admission of his right into the category of easements, so now, in the light of our present knowledge, a person may, as in Errington v. Errington, achieve in the character of licensee an object which eluded him as long as he took steps in the wrong direction by asserting an abortive title as lessee. The question, whether an interest is a licence or a lease, is most important, and without some examination of the older cases the modern cases cannot be understood. The oldest case appears to be Hall v. Seabright. X sued Y for trespass to his house; Y pleaded that X gave him a licence to occupy until midsummer if he so wished. But the court seems to have been of opinion that the defendant must have had a lease or nothing, and there is no such thing as a lease whose existence depends on the will of one party. Professor Hargreaves cites this case as authority for the familiar proposition, recited at the beginning of this article, that “parties cannot by their mere intention vary the legal consequences of their own acts.” The moral would seem to be that even an abortive lease cannot be interpreted as a licence. He maintains that it was not until Errington v. Errington that a person admittedly in exclusive possession of land was denied a legal or equitable title to the land itself, and relegated to the position of licensee, which was elevated for his protection to give him advantages as good as those he would have enjoyed had such a title been attributed to him.

A Wife petitioned for divorce on the ground of cruelty. The husband denied that he had been guilty of cruelty; and in his answer alleged that the petitioner had been guilty of adultery. The husband was a regular soldier of non-commissioned rank; and an issue in the case related to the circumstances in which the wife was received by the husband on her arrival at his station at Hongkong. There had been at Hongkong a representative of the Soldiers, Sailors and Air Force Families Association (SSAFA), a Mrs. Allsop. Differences had arisen between the husband and wife, and her good offices were invoked. She had made written reports of the case to her head office.

Before the hearing of the suit the solicitors for the wife had caused to be issued two subpoenas. The first was a subpoena ad testificandum directed to Mrs. Allsop. The second was a subpoena duces tecum addressed to the Secretary of State for War, relating to letters, copies of letters, memoranda and records made by SSAFA concerning the petitioner and respondent. The reason for the second subpoena being directed to the Secretary of State for War was that, for some reason which was left obscure, all the relevant SSAFA documents had come into the possession of the War Office. Counsel was instructed for the Crown, and he produced a certificate by the Secretary of State for War. This stated that, having read the correspondence and notes covered by the subpoena duces tecum addressed to him, he was of opinion that it was not in the public interest that the documents should be produced.

The success of any system of law depends, in the last resort, on the personnel who administer it. However perfect the procedure of a system may be in theory, it will not work well in practice if the officials who operate it are inefficient or lack proper powers: whereas, with efficient personnel having adequate powers, imperfections of procedure may be of little consequence. The fundamental principles of criminal procedure are the same in England and the United States; yet in the one country there is satisfaction, amounting, perhaps, to complacency, with the operation of the criminal law; while in the other there is almost universal dissatisfaction. This dissatisfaction has provoked a great deal of detailed research in America into the deficiencies of criminal justice, by both public commissions and private individuals, and, consequently, the publication of much frank and vigorous criticism. An examination of this criticism shows that, in the opinion of the American commentators, the factor of personnel is at the root of a great many of their troubles.

It is indeed the submission of this article that the important differences in the actual administration of the criminal law in England and America arise, in large measure, from the difference in status and character of the personnel who administer the law; and, in particular, from the differences in the distribution of powers among them. A comparison of some aspects of the powers, prestige, character and abilities of the judges, juries and counsel who, between them, are responsible for dispensing criminal justice in the higher courts in the two countries, will, it is believed, reveal that this is so.

From the standpoint of jurisprudence of any court should be perfected immediately after the judge has pronounced his decision. Unfortunately this ideal is not easily attainable in practice, and least of all in a court of equity. In the Chancery Division of the High Court the elaborate procedure built up by the old Court of Chancery for perfecting orders still remains virtually unchanged; and so far as the reported cases go the court had never been required until the recent case of Re Harrison,1 to decide at what moment in time its decision becomes irrevocable. put very shortly the point at issue in this case was whether a judge of the Chancery Division has power of his own motion to alter or reverse (before the judgment has been entered) an oral and decisive judgment given in open court.