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Title: The Law and the Poor
Author: Parry, Edward Abbott, 1863-1943
Language: English
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THE LAW AND THE POOR
BY HIS HONOUR JUDGE
EDWARD ABBOTT PARRY
AUTHOR OF "DOROTHY OSBORNE'S LETTERS," "JUDGMENTS
IN VACATION," "WHAT THE JUDGE SAW," "THE SCARLET
HERRING," "KATAWAMPUS," ETC.
"Laws grind the poor and rich men rule the law."
OLIVER GOLDSMITH: "The Traveller."
LONDON
SMITH, ELDER & CO., 15, WATERLOO PLACE
1914
TO THE MAN IN THE STREET
THIS VOLUME IS DEDICATED,
IN THE PIOUS HOPE THAT
HE WILL TAKE UP HIS JOB
AND DO IT.
CONTENTS
CHAP. PAGE
INTRODUCTION ix
REFERENCES xv
I. PAST AND PRESENT 1
II. THE ANCIENTS AND THE DEBTOR 20
III. OF IMPRISONMENT FOR DEBT IN ENGLAND 36
IV. HOW THE MACHINE WORKS 58
V. WORKMEN'S COMPENSATION 76
VI. BANKRUPTCY 106
VII. DIVORCE 125
VIII. FLAT-TRAPS AND THEIR VICTIMS 152
IX. POVERTY AND PROCEDURE 172
X. CRIME AND PUNISHMENT 189
XI. THE POLICE COURT 213
XII. LANDLORD AND TENANT 233
XIII. THE TWO PUBLIC HOUSES: I. THE ALEHOUSE 252
XIV. THE TWO PUBLIC HOUSES: II. THE WORKHOUSE 271
XV. REMEDIES OF TO-DAY 285
XVI. REMEDIES OF TO-MORROW 299
INDEX 311
INTRODUCTION
"But, say what you like, our Queen reigns over the greatest nation
that ever existed."
"Which nation?" asked the younger stranger, "for she reigns over two."
The stranger paused; Egremont was silent, but looked inquiringly.
"Yes," resumed the stranger after a moment's interval. "Two nations;
between whom there is no intercourse and no sympathy; who are as
ignorant of each other's habits, thoughts, and feelings, as if they
were dwellers in different zones, or inhabitants of different planets;
who are formed by a different breeding, are fed by a different food,
are ordered by different manners, and are not governed by the same
laws."
"You speak of----," said Egremont, hesitatingly.
"THE RICH AND THE POOR."
BENJAMIN DISRAELI: "Sybil, or The Two Nations."
The rich have many law books written to protect their privileges, but the
poor, who are the greater nation, have but few. Not that I should like to
call this a law book, for two reasons: firstly, it would not be true;
secondly, if it were true, I should not mention it, as I want people to
read it.
You cannot read law books, you only consult them. A law book seeks to set
out the law, the whole law, and nothing but the law on the subject of
which it treats. There are many books on Poor Law, there are hundreds of
volumes about the Poor, and many more about the Law, but the Law and the
Poor is a virgin subject.
It is a wonder that it should be so because it is far more practical and
interesting than either of its component parts.
It is as if poetry had dealt with beans or with bacon and no poet had
hymned the more beautiful associations of beans and bacon. In the same way
the Law and the Poor is a subject worthy of treatment in drama or poetry,
but that that may be successfully done someone must do the rough spade
work of digging the material out of the dirt heaps in which it lies, and
presenting it in a more or less palatable form. When this has been done
the poet or the politician can come along and throw the crude metal into
the metres of sonnets or statutes or any form of glorious letters they
please.
From the very earliest I have taken a keen interest in this subject. I
remember well when I was a schoolboy the profound impression made upon me
by Samuel Plimsoll's agitation to rescue merchant seamen from the horrible
abuses practised by a certain class of shipowner. My father, Serjeant
Parry, was engaged in litigation for Plimsoll, and I heard many things at
first hand of that great reformer's hopes and disappointments.
There were a class of traders known as "ship knackers," who bought up old
unseaworthy vessels and sent them to sea overloaded and over-insured.
Plimsoll, for years, devoted himself to prevent this wickedness. There was
the usual parliamentary indifference, the customary palavering and
pow-wowing in committees until, after six or seven years of constant
fighting, the public conscience was awakened, and, in 1875, Disraeli
produced a Merchant Shipping Bill. But then, as now, there was no
parliamentary time for legislation dealing with the poor, and the Bill was
one of the innocents to be sacrificed at the annual summer massacre.
This would have been the end of all hope of reform had not Samuel
Plimsoll, in a fine frenzy of rage and disgust, openly charged the
Government with being parties to the system which sent brave men to death
in the winter seas and left widows and orphans helpless at home, "in order
that a few speculative scoundrels, in whose heart there is neither the
love of God nor the fear of God, may make unhallowed gains."
This was unparliamentary enough, but it was allowed to pass. It was when
he began to give the names of foundered ships and their parliamentary
owners and, in his own words, "to unmask the villains" who sent poor men
to death and destruction, that he was promptly called to order, and,
refusing to withdraw, left the House.
The result of his outburst was entirely satisfactory. The Government were
obliged to bring in another Bill and to pass it without delay.
Many years later the unauthorised Radical programme of Mr. Joseph
Chamberlain aroused my youthful enthusiasm, and I spent much of my then
ample leisure as a missionary in that cause.
We soon lost our great leader, who went away to champion what he
considered greater causes, but he was one of the first English statesmen
in high places to make his main programme a reform of the law in the
interests of the poor, and he left behind him mournful but earnest
disciples who have not yet found such another leader. The Workmen's
Compensation Act will always, I think, be regarded as one of his greatest
achievements, and mauled and mangled as it has been in the Law Courts it
remains the most substantial benefit that the poor have received from the
Legislature in my lifetime.
Twenty years' service in urban County Courts has naturally given me some
insight into the way in which the law treats the poor and the real wants
of the latter. I agree that such a book as this would be better written by
one who had actual experience of the life of the poor, rather than the
official hearsay experience which is all that I can claim to have had.
I think the great want of labour to-day is an Attorney-General, a man who
having graduated in the workshop comes to the study and practice of the
law with a working man's knowledge and ideals, and gaining a lawyer's
power of expressing his wants in legal accents, raises his voice to demand
those new laws that the poor are so patiently awaiting.
If there be such a one on his way and this volume is of any small service
to him, it will have more than fulfilled its purpose.
Originating in a series of essays published in the _Sunday Chronicle_, it
has grown into a more ambitious project, and is now, I trust, a fairly
complete text-book of the law as it ought not to be in relation to the
poor.
In my endeavour to please the taste of the friend to whom I have dedicated
this book I have dispensed with all footnotes, but I have added an
appendix of references in case there may be any who might wish to test the
accuracy of statements in its pages.
"Thus," as my Lord Coke says, "requesting you to weigh these my labours in
the even balance of your indifferent judgment I submit them to your
censure and take my leave."
EDWARD A. PARRY.
SEVENOAKS,
1914.
REFERENCES
_The number of the page and the number of the line counting from the top
are given in the left-hand column._
INTRODUCTION
PAGE LINE
xi 11 Hansard. 1875. Vol. 225, col. 1823.
xiii 7 Coke's "Institutes." I. "To the Reader."
CHAPTER I
1 3 Job xiii. 5.
4 20 "The Compleat Constable. Directing all Constables,
Headboroughs, Tithing men, Churchwardens, Overseers of the
Poor, Surveyors of the Highways and Scavengers in the Duty
of their several Offices, according to the Power allowed
them by the Laws and the Statutes." 3rd edition. London.
Printed for Tho. Bever at the Hand and Star, near Temple
Bar. 1708.
8 16 "Shakespeare's Europe. Unpublished chapters of Fynes
Moryson's Itinerary, being a survey of the condition of
Europe at the end of the sixteenth century. 1903." At p. 67.
9 24 Smollett. "Roderick Random." Chap. XXIII.
12 6 The Trial of Richard Weston at the Guildhall of London for
the Murder of Sir Thomas Overbury, 19th October, 13 James
1st, A.D. 1615. Howell's "State Trials," II., 914.
13 21 Boswell's "Life of Johnson." Edited by Birkbeck Hill. II.
130.
14 29 Boswell's "Life of Johnson." IV. 188.
17 8 _Manchester Guardian_, Saturday, January 24th, 1824.
CHAPTER II
22 6 2 Kings iv. 1--7.
28 6 Grote's "History of Greece." Part II., c. 11.
32 20 Hunter's "Roman Law." 3rd edition. P. 18.
34 7 Fynes Moryson. "Shakespeare's Europe."
CHAPTER III
IMPRISONMENT FOR DEBT.--The main authorities for the history
of imprisonment for debt are the reports of the three
commissions.
1840. Report of Commission on the Present State of the Laws
respecting Bankrupts and Insolvent Debtors.
1893. Report from the Select Committee on the Debtors Act
with Minutes of Evidence.
1909. Report on Select Committee on Debtors (Imprisonment)
with Minutes of Evidence.
The Hansard Reports of the debates over the Bills of 1837,
1844, and 1869, contain many clear statements of the
argument for, and against, abolition.
37 17 "The Law of Executions, to which are added the History and
Practice of the Court of King's Bench." By the late Lord
Chief Baron Gilbert.
42 7 Smollett. "Roderick Random." Chap. LXI.
43 1 For the story of the Clerkenwell Spinster and the Debtor,
see Sir Walter Besant's "London in the Eighteenth Century,"
Chap. V., "Debtors' Prisons," at p. 562. This volume
contains excellent accounts of the law and the poor in the
eighteenth century.
45 8 December 5th, 1837. Lord Cottenham introduced Bill to
abolish arrest on mesne process. 1 & 2 Vict. c. 110.
45 30 Thackeray. "The Virginians." Vol. I. Chap. XLV.
46 18 Duke de Cadaval's case. Hansard. 1837. Vol. 39, p. 593.
48 2 J. B. Atlay. "The Victorian Chancellors." I., 406.
48 18 Lord Brougham's speech. Hansard. 1837. Vol. 39, p. 574.
49 15 Lord Brougham's speech. Hansard. 1844. Vol. 75, p. 1174.
51 6 See Judgment of Sir George Jessel, M.R., in _Marris_ v.
_Ingram_, (1879) Law Reports, 13 Chancery Division, p. 341.
55 6 Sir Robert Collier's speech. Hansard. 1869. Vol. 197, p.
421.
CHAPTER IV
65 5 "Debtors' Imprisonment Report, 1909." Appendix 19, at p. 371.
70 26 Basil Montagu. "Opinions of Paley Burke and Dr. Johnson on
Imprisonment for Debt."
75 5 Jeremy Taylor. "A Prayer to be said by all Debtors, and all
Persons obliged whether by Crime or Contract." "Holy Living
and Dying."
CHAPTER V
There are many books on the Workmen's Compensation Act. That
by Mr. Adshead Elliott is as clear and comprehensive as any.
The Hansard Debates on the Bills of 1897 and 1906 are full
of interest.
81 12 John Chipman Gray. "Nature and Services of Law." Sections
222-224.
83 13 _The Attorney-General_ v. _The Edison Telephone Co.
of London, Ltd._, (1880) Law Reports, 6 Queen's Bench
Division, p. 244.
86 5 Gilbert E. Roe. "Our Judicial Oligarchy."
87 17 Mr. Asquith's speech on Employers' Liability Bill. Hansard.
1893. Vol. 8, p. 1948.
92 24 See the judgments of Lord Halsbury and Lord Davey, in
_Lysons_ v. _Andrew Knowles_, (1901) Law Reports,
Appeal Cases, p. 79.
CHAPTER VI
108 28 Jeremiah xxii. 13.
109 16 See "The Living Wage," by Philip Snowden, M.P., for a
sensible, practical statement of the Socialist ideal.
109 18 Psalms xxxv. 10.
110 11 Carlyle. "Chartism." Chap. I.
119 30 Hansard. 1883. Vol. 277, p. 834.
CHAPTER VII
The chief authority for this chapter is "The Report of the
Royal Commission on Divorce and Matrimonial Causes,"
published in 1912, cited below as D. C.
125 13 Notes on the Reformatio Legum Ecclesiasticarum. D. C., III.,
pp. 44-58. Appendix II., p. 23.
129 24 J. B. Atlay. "The Victorian Chancellors." II., 71.
133 24 Jane and Fred's Case. D. C., II., 390.
134 14 George and Mary's Case. D. C., II., 390.
136 4 Note by Mrs. Tennant. D. C. Report, 169.
137 28 Mr. Justice Bargrave Deane's evidence. D. C., I., 49.
138 16 Alfred and Anna's Case. D. C., II., 390.
139 9 John and Catherine's Case. D. C., II., 391.
140 25 Norah's Case. D. C., II., 391.
143 17 Divorce in France. M. Mesnil's evidence. D. C., III., 485.
146 18 Mr. Dendy's evidence. D. C., I., 133.
147 29 German Divorce. Dr. Carl Neuhaus's evidence. D. C., III.,
472.
147 31 Scot's Divorce. Mr. Lamier's evidence. D. C., I., 277.
150 9 Selden's "Table Talk." LXXXIV.
150 30 D. C. Report, Part IX., par. 50.
CHAPTER VIII
153 18 Carlyle. "Latter Day Pamphlets." "Parliament."
164 28 Dickens. "Oliver Twist." Chap. LI.
169 8 Arthur Hugh Clough. "The Latest Decalogue."
CHAPTER IX
174 6 George Eliot. "The Mill on the Floss." Book II., Chap. II.
175 11 _Lysons_ v. _Andrew Knowles_, (1901) Law Reports, Appeal
Cases, p. 79.
178 15 Tomkin's "Law Dictionary," _sub tit._, "Barraster."
180 19 See Lord Sumner's judgment in _Dallimore_ v. _Williams and
Jesson_, _Times_ Newspaper, Saturday, March 28th, 1914.
182 1 Swift. "Gulliver's Travels." "A Voyage to the Houyhnhnms."
183 3 Crabbe. "The Borough." Letter VI.
187 24 As to French Conciliation Courts, see Poincaré, "How France
is Governed," Chap. X., "Justice."
188 18 Piers Plowman. "The Vision of the Field full of Folk."
CHAPTER X
190 4 Sydney Smith. "Counsel for Prisoners." _Edinburgh Review_,
1826.
192 23 Bentham. "A Treatise on Judicial Evidence." 1825. Book I.,
Chap. II., p. 7.
193 19 Thackeray. "The Case of Peytel." "Paris Sketch Book."
194 2 Dickens. "Why?" "Miscellaneous Papers." II., 101.
195 22 Hansard. 1898. Vol. 54, p. 1176.
196 4 Hansard. 1898. Vol. 56, p. 990.
196 11 See division list on second reading. Hansard. 1898. Vol. 56,
p. 1087.
198 7 Hansard. 1907. Vol. 174, p. 282.
198 10 Hansard. 1907. Vol. 174, p. 292.
199 5 Boswell's "Life of Johnson." Birkbeck Hill's edition. III.,
25.
200 6 Fuller's "Church History."
201 30 Howell's "State Trials." II., 927.
CHAPTER XI
215 4 "Speech of Viscount Haldane to the American Bar Association
at Montreal on September 1st, 1913." Published in "The
Conduct of Life and Other Addresses, 1914," p. 97.
227 22 Sydney Smith. "Cruel Treatment of Untried Prisoners."
_Edinburgh Review_, 1824.
CHAPTER XII
As to Housing, see "Report of Her Majesty's Commissioners
for Inquiring into the Housing of the Working Classes,
1885," and "Report of the Joint Select Committee of the
House of Lords and the House of Commons, 1902."
235 9 _R._ v. _Foxby_, 6 Modern Reports, pp. 11, 178, 213,
239 and 311.
238 4 Dickens. "Bleak House." Chap. XVI.
238 32 Charles Kingsley. "Alton Locke." Chap. II.
240 1 Benjamin Disraeli. "Sybil." Book II., Chap. III.
244 10 "History of Housing Reform." Published by the National
Unionist Association. 1913.
246 1 "The Land. The Report of the Land Enquiry Committee." Vol.
II., p. 28.
250 2 Carlyle. "Chartism." Chap. VIII. "New Eras."
254 21 "The Republic of Plato." Book IV. Translated by Davies and
Vaughan.
CHAPTER XIII
255 26 Mr. Balfour's speech on licensing. Hansard. 1908. Vol. 185,
p. 98.
256 4 Licensing Act, 1904, § 4, now Licensing Act, 1910, § 14.
256 16 Hansard. 1904. Vol. 133, p. 742.
258 21 Dickens. "Our Mutual Friend." Book I., Chap. VI.
265 19 "Letters and Memories of Charles Kingsley." I., 270.
CHAPTER XIV
272 15 "Report of the Royal Commission on the Poor Laws and Relief
of Distress, 1909."
274 24 Coke's "Institutes." III., Chap. 40, p. 103 (note).
275 16 Horn's "Mirror of Justices." Selden Society. Vol. 7, Book
IV., Chap. XVI., "Of the Judgment of Homicide."
276 2 Horn's "Mirror of Justices." Book I., "Of Sins Against the
Holy Peace."
279 11 "Report of Royal Commission on the Poor Laws, 1834," p. 307.
280 17 "Poor Law Report, 1909," p. 728.
CHAPTER XV
285 1 2 Samuel xv. 4.
290 12 Walt Whitman. "Song of Myself."
292 14 "Report of Select Committee of the House of Lords on the
Debtors Act." William Johnson's evidence, p. 164.
294 12 Manitoba Laws.
CHAPTER XVI
299 2 Marcus Aurelius. "Meditations." Book IV., par. 31.
303 3 Rudyard Kipling. "The Five Nations." "Stellenbosh," p. 194.
THE LAW AND THE POOR
CHAPTER I
PAST AND PRESENT
In a word we may gather out of history a policy no less wise than
eternal; by the comparison and application of other men's fore-passed
miseries with our own like errors and ill-deservings.
SIR WALTER RALEIGH: "History of the World."
Oxford edition. Vol. II., Preface v. and vi.
I often feel that if that excellent patriarch Job had been alive he would
have sent me a postcard indited, "O that ye would altogether hold your
peace and it should be your wisdom." I have an anonymous friend who sends
me frank criticisms of that kind on postcards. The sentiments are the same
as Job's text, but the language is fruitier. Nevertheless, I like to hear
from him, for he is an attentive reader of all I write. But, honestly,
although I was always sorry for Job and glad when he came into his camels
and donkeys in the last chapter, yet I never sympathised with his attitude
of taking his troubles lying down. After all, if one has gained a little
practical experience of the law and the poor by living and working with
them for twenty years it seems a pity to take it with you across the ferry
into the silence merely because you have a bashful and retiring
disposition. It is right, of course, to give your views and services to
Select Commissions and the like,--but that is no better than hiding a lump
of gold in a hole in the ground. The wiser plan is to try and tell the
law-makers of the future--the men in the street--what is wrong with the
machine, so that when they take it over, as they must do some day, they
will not scrap it in mere despair, but tune it up to a faster and nobler
rhythm. Job, great, good, patient soul that he was, had his sour
moments--a medical friend of mine believes that he had a liver,--I am
sorry not to take the patriarch's advice, but I do not see my way to hold
my peace about the law and the poor, and that is why I propose to try and
point out how and why the law as a system is hard on the poor, and wherein
the governors and great ones of the earth may further temper the wind to
the shorn lamb. I myself do not expect to enter into the promised land of
legal reform, but I am as sure that the younger generation will see it, as
I am sure that they will see the rising sun if they ever get up early
enough. The man at the door of the booth who beats the drum and calls out
to the young folk in the fair to walk up and see the show plays a helpful
part, though the old gentleman knows that he is doomed to stand outside
and never make one of the audience. Moses was like that, but he did useful
work in booming the promised land.
An eminent socialist complained to me with tears in his eyes that nothing
was being done for the poor. I do not agree. Not enough, certainly, but
something, and every day more and more. The world is a slow world, and
Nature, like all such artisans, does her building and painting and
decorating with exasperating deliberation. Geology is slower than the
South Eastern Railway. But no doubt Providence intended each of them to go
at the pace they do for our good. And it is impious to grumble.
Nevertheless, if I were a sculptor called upon to design a symbolic statue
of Nature, I should model a plumber. Slow, hesitating, occasionally mixing
the taps and flooding the world's bathroom or exploding the gas mains in
the cellars of the earth, but in the end doing the job somehow--such is
the way of Nature. You cannot cinematograph the growth of the world or its
rocks and trees and human beings--to study Nature you want long life and a
microscope. And the only way to make out whether the tide is coming in or
out is to place a mark upon the shore and wait and see. It is the same if
you are travelling an unknown road--you measure your progress by the
milestones. In this matter of the law and the poor, if we want to know
where we are to-day and where we are likely to be three hundred years
hence, the only sane way to make the experiment is to go back to what we
know of things in the past, and, by measuring the progress made in bygone
centuries, take heart for the morrow. That is what Sir Walter Raleigh
meant when he told us how to gather a sane policy for to-day out of the
blunders and troubles of yesterday.
As I grope my way back along the main road of the history of the law into
the dark ages I seem to find the milestones of reform set at longer and
longer intervals. This puts me in good heart for the happy youths whose
lot it will be to set their faces towards the morning breezes of the
future. Their milestones will come at shorter intervals every day, until
the burden of the law drops from the shoulders of the poor at the wicket
gate.
There is no greater folly than to sing the praises of the good old days.
Anyhow, the law had no good old days for the poor. Stroll down to the
dockyards with Samuel Pepys; take a walk down Fleet Street with Dr.
Johnson; or, even as late as the days of Charles Dickens, go round the
parish with Mr. Bumble. You will learn in this way better than in any
other how the law has treated the poor in the good old days. I have a
quaint little volume written for the Dogberries of the early eighteenth
century called "The Compleat Constable." It is amazing to read of the
tyranny of the law towards the poor and the homeless of those days.
The statutes made for punishing rogues, vagabonds, night walkers and such
other idle persons are, says the anonymous legal author, "a large Branch
of the Constable's Office, and herein two things are to be known:--
"(1) What is a Rogue and who is to be accounted a Vagabond?
"(2) What is to be done unto them?"
The charming impersonal technical spirit of this little work is beyond all
praise. Not a word is ever used to remind you that, after all, a rogue
and a vagabond is a man and a brother. You are taught first to diagnose
him as Izaak Walton would teach the young angler how to discover the
singling that did not usually stir in the daytime, and having captured
your rogue and vagabond, you are then enlightened as to the various
methods of killing or curing him.
And first you are to note that all persons above the age of seven, man or
woman, married or single, that wander abroad without a lawful passport and
give no good account of their travel are accounted rogues. Then follows a
very lengthy list of such as are "of a higher degree and are to be
accounted as Rogues, Vagabonds and sturdy Beggars." Such are all Scholars
and Sea-faring men that beg, wandering persons using unlawful games,
subtle crafts, or pretending to have skill in telling of fortunes by the
marks or figures on the hands or face, Egyptians or Gypsies. All Jugglers
or Slight-of-hand Artists pretending to do wonders by virtue of Hocus
Pocus, the Powder of Pimper le Pimp, or the like; all Tinkers, Pedlars,
Chapmen, Glassmen, especially if they be not well known or have a
sufficient testimonial. All collectors for Gaols or Hospitals, Fencers,
Bearwards, common players of interludes, and Fiddlers or Minstrels
wandering abroad. Also Persons delivered out of Gaols who beg their fees,
such as go to and from the Baths and do not pursue their License, Soldiers
and Mariners that beg and counterfeit certificates from their commanders.
And, lastly: "All Labourers which wander abroad out of their respective
Parishes, and refuse to work for wages reasonably taxed, having no
Livelyhood otherwise to maintain themselves, and such as go with general
Passports not directed from Parish to Parish."
In a word, all the unfortunate poor who would not do as they were told by
their pastors and masters and wanted to work and amuse themselves in their
own way were rogues and vagabonds. And it is not without interest to run
your eye over this list, for the statutory rogue and vagabond is still
with us and our Poor Law of to-day suffers from its direct hereditary
connection with the Poor Law of the eighteenth century.
The duty of "The Compleat Constable" was, in the words of Dogberry, to
"comprehend all vagrom men" and he was liable to a fine of ten shillings
for every neglect. Moreover, if you were a stalwart fellow, you could
apprehend your own rogue and vagabond and hand him over to the constable,
who was bound to receive him.
Having dealt in accurate detail with the classification and identification
of rogues, we come next to the chapter on treatment, which is best given
in the simple words of the original. "The Punishment is after this manner.
The Constable, Headburrough or Tythingman assisted by the Minister and one
other of the Parish, is to see (or do it himself), That such Rogues and
Vagabonds, etc., be stript Naked from the middle upwards and openly
Whipped till their Body be bloody and then forthwith to be sent away from
Constable to Constable, the next straight way to the place of their
Birth; and if that cannot be known then to the place where they last
Dwelt, by the space of one whole Year before the time of such their
Punishment; and if that cannot be known then to the Town through which
they last passed unpunished." If, however, none of these habitats was
discoverable, the vagrom man was sent to the house of correction or common
gaol, where he was put to hard labour for twelve months.
It is only fair to remember, "that after such Vagabond is whipt as
aforesaid he is to have a Testimonial"--is this the origin of people
asking for testimonials?--"under the Hand and Seal of the Constable or
Tything-man and the Minister testifying the day and place of his
Punishment; as also the place to which he is to be conveyed, and the time
limited for his own Passage thither: And if by his own default he exceed
that time then he is again to be whipt--and so from time to time till he
arrive at the place limited."
In the good old days of Merrie England the chief entertainment of the
villagers must have been to crowd round the stocks and the whipping post
on the village green--some of which are existing to this day--just as
their city cousins swarmed along the road to Tyburn. And if you had
suggested that the players or the fiddlers were a more wholesome amusement
for the people than these cruel sights, you would not only have shocked
the minister but would have rendered yourself liable to be treated as a
vagrom man and to receive a testimonial from the constable. It is easy
to-day to see the wrongdoing of much of this, but it was not to be
expected that the citizens of the time should see any evil in the everyday
cruelties they were used to. The law seems to have been hard on the poor
then, but very few worried about it.
History is constantly showing us that in matters touching the
imperfections of our own system of law we are colour blind to the
cruelties we commit ourselves and easily moved to indignation by the
horrors and wickednesses committed by foreigners, especially if they are
foreigners who have never known the blessings of the particular religion
we profess. When Fynes Moryson was travelling in Turkey at the end of the
sixteenth century, he set down with reasonable detestation some of the
gruesome things he observed. "Touching their Corporal and Capital
Judgments," he writes: "For small offences they are beaten with cudgels on
the soles of the feet, the bellies and backs, the strokes being many and
painful according to the offence or the anger of him that inflicts them.
Myself did see some hanging and rotting in chains upon the gallows."
Yet in England he might have seen many of his fellow countrymen hanging
and rotting in chains, for there was at that date and for many years
afterwards no country with a more evil record than England for the
practice of capital punishment for minor offences. As to mere corporal
punishment, there was not a village in England without its whipping post,
and a common sight in the streets of the city was to see a poor wretch
being whipped at the cart's tail. In ordinary cases the journey was from
Newgate to Ludgate, or from Charing Cross to Westminster, but for really
bad cases it was extended from Newgate to Charing Cross. And not only did
these punishments exist in England, but the populace enjoyed them. One of
the sights of London was to see the women whipped in the Bridewell. The
Court of Governors held their board meeting, presided over by a
magistrate, and the sentence was executed in their presence and continued
until the President struck the table in front of him with a hammer. The
cry, "O good Sir Robert, knock! Pray, good Sir Robert, knock!" which the
victims screamed out whilst under the lash, became a common slang cry
among the lower orders in the streets of London in the seventeenth
century.
There can be no doubt about the horrors of the old prisons, but it was
only men and women of especial insight who recognised that there was real
evil in them. Literature and art did much to arouse the public conscience.
There is a strong description of the Bridewell in "Roderick Random," where
Smollett makes Miss Williams tell her life story. In this prison, she
says, "I actually believed myself in hell tormented by fiends; indeed,
there needs not a very extravagant imagination to form that idea; for of
all the scenes on earth that of Bridewell approaches nearest the notion I
had always entertained of the infernal regions. Here I saw nothing but
rage, anguish and impiety; and heard nothing but groans, curses and
blasphemy. In the midst of this hellish crew I was subjected to the
tyranny of a barbarian who imposed upon me tasks that I could not possibly
perform and then punished my incapacity with the utmost rigour and
inhumanity. I was often whipped into a swoon and lashed out of it, during
which miserable intervals I was robbed by my fellow-prisoners of
everything about me even to my cap, shoes and stockings: I was not only
destitute of necessaries but even of food, so that my wretchedness was
extreme."
No one need suppose that Smollett is guilty of exaggeration, for the
well-known plate of Hogarth shows us the actual scene and the records of
the place are numerous. There were, of course, just as many good and
charitable men and women then as there are now, but the possibility that a
Bridewell was a thing that the world had then no use for was entirely
beyond the thought of the eighteenth century citizen. In the same way how
few of us recognise that there is much room for reform in the penal system
of to-day.
It is natural that it should be so. We arrive in the world knowing nothing
much about it, we are brought up to believe that everything that has been
going on for the last few centuries has been for the best, and the tired
old ones who are leaving us are never tired enough to leave off telling us
that they have made every possible reform that it was safe and advisable
to make. In the few years of hustling life and in the scanty hours that he
can spare from earning his daily bread the average citizen has little time
and opportunity to investigate the social system of which he is a unit, or
to understand how or why the wheels of the world machine are grinding
unevenly. When we read of the horrors of two or three hundred years ago,
it should not be to cast a reproach against our fathers, but rather to
learn who were the men and women who moved the world of that day to see
things as they were. These glorious spirits have enabled us to enter upon
our inheritance free from the worst degradations of the past and we may
best render them thanks and praise by learning to follow their example.
I make no doubt that most of us are much like old Fynes Moryson, who,
being an ordinary average Englishman, saw the everyday horrors of his own
country, but was in no way impressed by them, yet was moved to grave
indignation at the wickedness and cruelties of foreigners. Truly the
seventeenth century Turk was a cruel beast. Moryson tells us with honest
reprobation, but in gruesome detail, of the Turkish methods of impaling,
where a "man may languish two or three days in pain and hunger; if torment
will permit him in that time to feel hunger for no man dares give him
meat," and of casting down malefactors to pitch upon hooks and other
nameless horrors. Yet if he had been in London on October 19th, 1615, and
dropped into the Guildhall, he might have heard the Lord Chief Justice of
England, the great Coke, using much persuasion to Richard Weston, who,
being accused of the murder of Sir Thomas Overbury, stood mute, refusing
to plead.
Coke and his brother judges, having failed to persuade the wretched Weston
to utter a plea of not guilty, the Lord Chief Justice repeated for his
benefit the law of England at that time and reminded him that the prisoner
who wilfully stood mute must undergo the _peine forte et dure_, the
extremity and rigour whereof was expressed in these words, "_Onere,
frigore et fame_." "For the first," continued his Lordship, "he was to
receive his punishment by the law, to be extended and then to have weights
laid upon him no more than he was able to bear which were by little and
little to be increased. For the second, that he was to be exposed in an
open place near the prison in the open air, being naked. And; lastly, that
he was to be preserved with the coarsest bread that could be got, and
water out of the next sink or puddle to the place of execution, and that
day he had water he should have no bread, and that day he had bread he
should have no water; and in this torment he was to linger as long as
nature could linger out so that often times men lived in that extremity
eight or nine days; adding further that as life left him so judgment
should find him. And therefore he required him upon consideration of these
reasons to advise himself to plead to his country."
Notwithstanding this advice the wretched man continued mute, but after a
consideration, during an adjournment of three or four days, of the law of
procedure as laid down by Lord Chief Justice Coke, Weston thought better
of it and pleaded not guilty, and was duly convicted and executed.
How illogical it seems that a citizen whose State executed this form of
torture on its prisoners should hold up the holy hands of horror at the
variations of cruelty that satisfied the lust of the unspeakable Turk! The
_peine forte et dure_ remained one of the pillars of our law until the
reign of George III. and was carried into execution in the reign of Queen
Anne and George II.--so obstinately do we cling to our ancient precedents
and so fearful are we of facing the narrow paths that lead to better
things.
When Oliver Goldsmith wrote, "Laws grind the poor and rich men rule the
law," I do not know that he wished to make any specially unkind attack
upon the rich. I imagine he merely intended to state a fact which seems in
all ages to have been universally true. I do not suppose that in the
middle of the eighteenth century anyone in the least recognised the actual
horrors that were going on around him unless it was some poet and dreamer
like Oliver himself. The strong, sensible men of that generation were as
assured of their own righteousness as they are to-day.
Dr. Johnson told Dr. Maxwell that "the poor in England were better
provided for than in any other country of the same extent; he did not mean
little cantons or petty republics. Where a great proportion of the people
(said he) are suffered to languish in helpless misery that country must be
ill-policed and wretchedly governed; a decent provision for the poor is
the test of civilisation. Gentlemen of education, he observed, were pretty
much the same in all countries; the condition of the lower orders, the
poor specially, was the true mark of national discrimination."
The good Doctor rolled all that excellent stuff out one evening in 1770 to
the Rev. Dr. Maxwell, the assistant preacher of the Temple, who, like
Boswell, faithfully recorded what he remembered of it in the morning--I
doubt not that if Dr. Johnson had lived in 1670, or 1870, or 1970, or had
flourished under Caligula or Nero, he would have rolled out the same
sonorous complacent nonsense to some sort of faithful human gramophone who
would have recorded the utterances of his master's voice with a canine
credulity in its omniscience.
There is nothing extraordinary in the divergence of the views of Oliver
Goldsmith and Dr. Johnson about the law and the poor. The good Doctor held
the strong, sensible, Tory view that the system of treating the poor
handed down to us by our forefathers was the right and proper system, that
it was at least as good as any other system, that nothing anyhow could be
learned from the hated foreigner, and that to pander to dreamers and
busybodies, who found fault and wanted to alter things, was to start down
the broad road of destruction. Oliver Goldsmith might have thought the
same thing if he had been an Englishman, but he had the saving grace of
Irish blood in his veins, and the true Irish have the power of looking
beyond the present, and are often prophets and dreamers of dreams, seeing
signs and wonders that we wot not of.
"Sir!" said Dr. Johnson on another occasion, and when he began like that
you knew that wisdom was about; "the age is running mad after innovations;
all the business of the world is to be done in a new way; Tyburn itself
is not safe from the fury of innovation."
It having been argued that this was an improvement--"No, sir (said he
eagerly), it is not an improvement; they object that the old method drew
together a number of spectators. Sir, executions are intended to draw
spectators. If they do not draw spectators, they don't answer their
purpose. The old method was most satisfactory to all parties; the public
was gratified by a procession; the criminal was supported by it. Why is
all this to be swept away?"
And Boswell and Sir William Scott nodded approval, just as you and I would
have done or do now when some important old gentleman lays down the law
about something of which he knows perhaps even a little less than we do
and we are too courteous or cowardly to tell him that at the back of our
minds we believe he is talking nonsense.
If you would be gratified by a Tyburn procession, you may see one any day
for yourself in Hogarth's print of the awful end of the Idle Apprentice.
The ragged men, women and children bawling dying speeches about the
streets, the criminal in the cart sitting beside his coffin, the chaplain
exhorting the poor outcast, who, if he still courted popularity, scoffed
openly, shouting to his friends on St. Sepulchre's steps where they stood
with their nosegays to give their pal a last greeting. What a solemn
impressive scene! All the way up Holborn there is a crowd so great that
every twenty or thirty yards the cart is pulled up, and now someone brings
out wine and the malefactor drinks a last toast. And when he reaches the
fatal tree the ribald mob swears and laughs and shouts out obscene jests.
Amid these noises a psalm is sung and the sound of it drowned in filthy
tumult. So was the life of a fellow sinner brought to an end in the
eighteenth century.
And there were men and women who wanted to abolish it all. It was too much
for Dr. Johnson. "Tyburn itself not safe from the fury of innovation!"
Fancy that! What a terrible outlook! The law deserting the poor and giving
them no more cheap excursions to Tyburn--well might the good Doctor shake
his dear old head and prophesy woe.
And when Dr. Johnson upheld the English treatment of the poor in 1770, we
may suppose he knew as much about it as a literary professor of to-day
knows about what is going on in the workhouse, or the police court, or the
County Court of our own time. The belief that the world is the best
possible of worlds has its value in making for the stability of things,
but mere ignorance of the facts of life, coupled with that strange form of
piety which accepts whatever system was good enough for a past age as the
only possible system for this, renders the pace of social reform as
imperceptible to the human mind as the movements of glaciers.
If a history of the law and the poor were to be written, it would be a
story of the lower classes emerging out of slavery into serfdom, out of
serfdom into freedom of a limited character, and every age finding new
abuses to remedy and trying in some small way to rid the law of some of
those traits of barbarism which linger in its old-world features. To each
new generation the terrors of the past iniquity of the law are mere
nightmares. We can scarcely believe that what we read is true any more
than our grandchildren will be able to understand how we were able to
tolerate some of the everyday legal incidents of our daily courts.
Less than a hundred years ago at Salford Quarter Sessions there were over
two hundred prisoners, all poor and mostly very young, and the law thought
nothing of transporting them for life or fourteen years as a punishment
for small thefts. And horrible as all this cruelty was, yet I make little
doubt that the judges of the time, with very few exceptions, administered
the law as humanely as they do to-day. Sir Thomas Starkie, the learned
Chairman of the Salford Epiphany Quarter Sessions in 1824, no doubt felt
very grieved when he sentenced Martha Myers, aged sixteen, and Mary Mason,
twenty-four, to seven years' transportation. I expect he thought he was
"giving them another chance." Perhaps he was. We do not know. They may
have become the mothers of big-limbed colonial aristocrats instead of
peopling the Hundred of Salford with another generation of feeble-minded
criminals.
Nowadays there is a tendency among the less discerning of mankind to set
down all the rough edges and inequalities of the law to the fault of the
judges, though in truth they have but a small part in the making of new
laws, and I do not think they can be rightly blamed for harsh
administration. They get the blame because they are the figure-heads of
the show, so to speak, and the public know nothing of the difficulties
under which the judges labour. It is their duty to administer the
complicated modern laws turned out by Parliament in a somewhat haphazard
fashion, and they are bound to keep alive old-world laws that ought long
ago to have been shot on to the rubbish heap. Nearly all the law relating
to the poor will be found to be defective to our modern sympathies, just
because it is a patching up of the ancient cruel pagan law of past ages
and does not break bravely away from the old superstitious uses and close
for ever the volumes of laws that were made in the days when liberty and
equality and fraternity were words of anarchy and rebellion.
The poor are suffering to-day at the hands of the law because in the
evolution of things we have a lot of old derelict law made by slaveowners
for slaves, by masters for serfs, by the landlords for the landless. It is
law that has no more relation to the wants of to-day, and would be of no
more purpose to a Ministry of Justice--if we had one--than crossbows and
arquebuses would be to the War Office, or coracles to the Admiralty. And,
instead of cursing the judges, who, poor fellows, are doing their best, I
wish our parliamentary masters would look into the history of the matter.
They would find, I think, that in the last few years enormous reforms have
been made in modifying the cruelty of the law to the poor, and might
discover, by marking back on the track of past reform, the lines upon
which further evolution may be hastened. One thing, I think, they will be
convinced about: it is not the judges who are hard on the poor, it is the
law. It is the sins of the lawgivers of the past that the poor are
expiating to-day.
CHAPTER II
THE ANCIENTS AND THE DEBTOR
My thoughts are with the Dead, with them
I live in long-past years,
Their virtues love, their faults condemn,
Partake their hopes and fears,
And from their lessons seek and find
Instruction with a humble mind.
ROBERT SOUTHEY:
"My Days among the Dead are past."
I find this question of the debtor, and our modern method of imprisoning
the poorer variety of the genus, in the forefront of any consideration of
the problem of the law and the poor, because to my mind it is a clear and
classic instance of the way in which it comes about that the law with us
is a respecter of persons.
The physiological tutor will take his pupils into the laboratory and cut
up a rabbit to show them where their livers ought to be, the microscopist
will choose a newt to exhibit to you the circulation of the blood, and in
like manner, for my purposes, the debtor seems to me to possess all the
necessary legal incidents in him through which one can give an excellent
object lesson on the law and the poor. There is no legal mystery about a
debtor; he is a common object of our legal seashore, as ancient of
lineage as the periwinkle and sometimes almost as difficult to get at.
Everyone has in his life at some time or other been a debtor, though not
all of us have attained to the dignity of a co-respondent, a mortgagor, a
garnishee, a bankrupt or a _cestui que trust_.
It seems to me that to demonstrate to the man in the street the unfairness
of our law of imprisonment for debt is such a feasible proposition, that I
have come to regard the subject as very fitting for the citizen's
kindergarten education on legal reform. Once understand the history, and
the causes of the continued existence, of imprisonment for debt, and its
evil effect on right action, conduct and social life, and you will find it
easier to diagnose the more obscure legal diseases which are partially the
outcome and partially the cause of much real distress among the poor.
Carlyle tells us to "examine history for it is philosophy teaching by
experience," and, if we take his advice in this matter of imprisonment for
debt, we shall, I think, be bound to admit that what is going on among us
day by day in the County Courts of this country is in historical fact a
relic of a very ancient barbarism.
It is the more extraordinary to me that this relic should still be
venerated, since history also makes it clear that teachers, prophets and
law-givers of all ages have testified to their sense of the cruelty and
injustice of the law which thrusts a man into prison because he does not
pay his neighbour what he owes him. I propose, therefore, before I set
down exactly what we are doing to-day, to trace the pedigree of our
present system of dealing with debtors and show you historically and
cinematographically, as it were, how the world has treated its debtors in
the past and what the saner men of different ages thought about it at the
time. In this way the man in the street of to-day will have the material
for forming a sound judgment on the question of what we should do with the
poor debtor.
And to begin with the Old Testament. Let us remember with gratitude the
remarkable action of Elisha in the matter. Elisha went the length of
performing a miracle to pay the bailiffs out. There are many poor widows
in the mean streets of our own cities looking down the road for the Elisha
of to-day who cometh not. Miracles do not happen nowadays; people don't do
such things. Still it is interesting to know that there was imprisonment
for debt in Elisha's day, just as there is now--for the poor and only for
the poor--and it is encouraging to know what Elisha thought about it.
What happened was this:--
The County Court bailiffs of the County Court of Israel, holden at
Samaria, went with a body-warrant to seize the two sons of a poor widow on
behalf of a creditor of her late husband, just as they might do to-day.
Fortunately, the deceased had been a servant that did fear the Lord, and
Elisha, hearing of the trouble, went down to the house, and in that
simple, kindly way that the dear old prophets had of putting little
troubles straight for members of their congregations and also no doubt to
show the contempt he had for the proceedings of the County Court of
Samaria, sent the widow out to borrow empty vessels of her neighbours.
These he miraculously filled with oil of the best, and the only pity of it
was that there were no more vessels to fill, for Elisha was in form that
morning, and was sorry to stop. When it was over he said to the widow: "Go
sell the oil and pay thy debt and live thou and thy children of the rest."
I am very fond of that story. I like to believe it really happened. I wish
it could happen to-day, for there are many poor women in much the same
straits as that poor widow. I have never heard the text referred to in
churches and chapels, and I am not surprised. A minister who preached
about it would have to explain that he could not do miracles of that kind
himself, and if he were to do the next best thing and preach about the
iniquity of imprisonment for debt straight from the shoulder--as I am sure
Elisha would have done--the respectable credit draper, the pious grocer,
and all the noble army of tally-men would get up in their pews and walk
out of his church or chapel in disgust.
The days of miracles are past, but if it was worth while for a holy man
like Elisha to show what he thought about imprisonment for debt, by means
of a miracle, surely, after all these ages, we might have improved that
particular piece of barbarism off the face of the earth.
But no. The poor are worse off now than they were then. The bailiffs come
for their bodies on behalf of their creditors still. And they look down
the road in vain. There is no Elisha.
And when you come to the New Testament the matter is laid down even more
clearly. Matthew vi. 12 has the actual words of Our Lord's Prayer to be,
"And forgive us our debts as we also have forgiven our debtors." If the
forgiveness of our debtors is a condition precedent to our own
forgiveness, most of us are in a parlous state. But is it too much in this
Christian country of ours to suggest that, even if the highest ideals of
the Master are beyond our attainment, we need not insult our belief by
continuing a barbaric pagan system of cruelty which has been singled out
for special disapprobation by the Word that we cannot shut our ears to?
You remember the parable of the king that took account of his servants
which Matthew sets out in his eighteenth chapter. How a servant owed the
king ten thousand talents and, as he had not wherewith to pay, his lord
commanded him to be sold, and his wife and children, and all that he had,
and payment to be made. Note that in those days the wife and children were
actually sold into slavery. We do not do that: we remove the bread-winner,
only, to gaol and care for his wife and children in the workhouse. It is
encouraging to find this much reform after nineteen Christian centuries.
The servant, you will recollect, pleaded with the king, saying, "Have
patience with me, and I will pay thee all." Debtors have not altered much
since that date, and the text has a familiar ring in the ears of a County
Court judge. The lord of that servant, being moved by compassion,
released him and forgave him the debt. This is important to remember, for
the servant being forgiven his debt was without excuse for his subsequent
contemptible conduct. And, indeed, I have often found that men who have
been most leniently treated in their own failures by those in a better
position, are themselves most greedy in extorting the uttermost farthing
from their smaller victims. Speaking generally, it is not the most
desirable class of trader that makes use of the debt-collecting system of
the County Court.
The servant of the parable was the meanest of curs. He "went out, and
found one of his fellow-servants, which owed him a hundred pence: and he
laid hold on him, and took him by the throat, saying, Pay what thou
owest." Here, again, we may flatter ourselves on our superior procedure.
If this had happened in Lambeth, the servant would not have been allowed
to go for his fellow servant with such jubilant audacity. Nowadays
everything would be done in legal decency and order. The debt being for a
hundred pence, and, therefore, being within the jurisdiction of the County
Court, a summons would have to be issued, fees would have to be paid to
the Treasury and the Court officials, and a lot of money spent and added
to the debt before imprisonment followed. Still the rough-and-ready
methods of the earlier centuries were certainly cheaper, and the result
was much the same. For we read that, though the fellow-servant pleaded in
the same formula, "Have patience with me, and I will pay thee," the
creditor of the hundred pence stood firm for his rights and cast his
fellow servant into prison till he should pay his due.
And if this had been a repertory drama and not a parable, the curtain had
fallen on that scene and one would have come away depressed with the
abjectness of human nature and with a cold feeling that the world was a
drab uncomfortable place. But the ancient dramatic stories always have a
happy ending. There is more of the spirit of the old Adelphi than of the
Gaiety Theatre, Manchester, about the parables. The lord hears of his
servant's scurvy behaviour and, to the delight of all sane men of
child-like and simple faith, the wicked servant is delivered to the
tormentors till he shall pay all that was due.
I confess that my legal mind has been haunted with the thought that, the
lord having forgiven the servant his debt, it was rather a strong order
for him to go back on that forgiveness. Doubtless there was no
consideration for the forgiveness, it was _nudum pactum_, or there may
have been an implied contract that the servant should do unto others as he
had been done by, but I rather expect the lord and his advisers only
considered the justice of their act rather than its technical legal
accuracy. But one thing we can rejoice in. There is the dramatic story,
and no one can construe it into approval of any form of imprisonment for
debt.
I know that many who do not regard the Bible as an authority will not be
troubled about this testimony; probably many more who do read the
Scriptures for guidance will be pained that anyone should make use of
holy words to upset a system that they find so useful in the commercial
weekdays of life. Moreover, some will shake their heads and remind me that
"the devil can cite Scripture for his purpose." That is true enough. But
it will be a very clever devil who can cite any Scripture in support of
section 5 of the Debtors Act, 1869.
And I will pass away from scriptural precedents to others which, though to
me they possess a less compelling sanction, will perhaps have more weight
with men of the world. In the history of ancient Greece the debtor played
an important part. Let me remind you what the Archon did.
The particular Archon I refer to is Solon.
Solon knew all about imprisonment for debt, and his evidence on the
subject is most convincing. It is well to remember, too, that Solon was a
business man--I have this from Grote, who got it, I fancy, from Plutarch.
Exekestides, Solon's father, a gentleman of the purest heroic blood,
"diminished his substance by prodigality," and young Solon had to go into
business; in modern phrase, he "went on the road," and saw a lot of the
world in Greece and Asia. I mention this because I am always told that if
I knew anything of business I should understand the necessity of
imprisonment for debt. Solon was emphatically a business man. Solon was
also a poet, which perhaps was his best asset as a social reformer, but he
was no sentimentalist if, as some say, when he was a general attacking a
rebellious city he ordered the wells to be poisoned to put an end to the
strife.
When Solon in a time of grand social upheaval was made Archon, he found
the poorer population, including particularly the cultivating tenants,
weighed down by debts and driven in large numbers out of freedom and into
slavery. Let me set down the condition of things in the careful words of
Grote lest I appear to exaggerate.
"All the calamitous effects were here seen of the old harsh law of debtor
and creditor--once prevalent in Greece, Italy, Asia, and a large portion
of the world--combined with the recognition of slavery as a legitimate
status, and of the right of one man to sell himself as well as that of
another man to buy him. Every debtor unable to fulfil his contract was
liable to be adjudged as the slave of his creditor, until he could find
means either of paying it or working it out; and not only he himself, but
his minor sons and unmarried daughters and sisters also, whom the law gave
him the power of selling. _The poor man thus borrowed upon the security of
his body_ (to translate literally the Greek phrase) and upon that of the
persons in his family."
The words I have italicised are interesting as exactly defining the
principle of all imprisonment for debt. A wage earner to-day who runs up
bills with tally-men and grocers obtains credit upon the security of his
body.
I have heard from the wife of a poor debtor an apt but unconscious
translation of the Latin maxim, _Si non habet in aere luat in corpore_.
Her allegation was that a tally-man had said to her husband, "If I canna
'ave yer brass I'll tek yer body." In the north country, among the more
old-fashioned bailiffs and their victims, warrants of arrest are commonly
known as "body warrants." No doubt the imprisonment of to-day is different
in degree from the slavery of debtors in Greece five hundred years before
Christ, but it is absolutely the same in principle, founded on the same
idea, and worthy to be maintained or abolished by the citizens of this
State for the same reasons that were found good by the citizens of Athens.
Thus it is that it is worth while finding out what Solon thought about it.
I wish Solon's tract, "What the Archon Saw," had come down to us, and we
could have quoted actual instances of the wickedness of imprisonment for
debt in his day, but at least we know what he thought of it, and, what is
really important to us, what he did. Solon had a pretty wit in titles. He
called his bill _Seisachtheia_, or the shaking off of burdens. The relief
which it afforded was complete and immediate. It cancelled at once all
those contracts in which the debtor had borrowed on the security of his
person or his land; it forbade all future loans or contracts in which the
person of the debtor was pledged as security; it deprived the creditor in
future of all power _to imprison_ or enslave or extort work from his
debtor, and confined him to an effective judgment at law, authorising the
seizure of the property of the latter.
This was indeed a shaking off of burdens. For here we find, not only was
imprisonment for debt abolished lock, stock and barrel, but a law enacted
protecting the land of the cultivator from being seized for debt. This is
akin to what in some of our colonies is called a homestead law, and I have
always contended that in the interests of the State the few sticks of
furniture which a poor man and his wife and children always call "the
home" should be protected from arrest for debt, just as the bread-winner's
body should be exempt from imprisonment. I could have got along with
Solon.
And when one is told the old tale that continues to be put forward by
those who wish to retain imprisonment for debt--that the workman will
starve for want of necessary credit and that trade will stagnate owing to
timid creditors refusing to trade--let us remember with pleasure that that
was not what the Archon saw as a result of his beneficial measures. On the
contrary, the testimony is overwhelming that there grew up a higher and
increasing respect for the sanctity of contracts. The system of
credit-giving, and especially of moneylending, assumed a more beneficial
character, and "the old noxious contracts, mere snares for the liberty of
a poor free man and his children"--the flat-traps of to-day--disappeared.
What happened was what will happen here when we abolish this degrading
system of giving credit on the sanction of body warrants. What happened in
Athens was that, although there were some fraudulent debtors, the public
sentiment became strongly in favour of honesty, and it is agreed that the
prophecies of Solon's failure were not made good, and "that a loan of
money at Athens was quite as secure as it ever was at any time or place of
the ancient world." Furthermore, it is acknowledged by the better
authorities that what I expect and believe will happen in the mean streets
of England when imprisonment for debt is abolished, actually did happen in
Athens, and, to use Grote's words, "the prohibition of all contracts on
the security of the body was itself sufficient to produce a vast
improvement in the character and conditions of the poorer population."
Of course, I am not putting forward "What the Archon Did" as an example to
the Archons who Didn't of to-day. The theory of evolution teaches us that
in two thousand years the Solon type must have improved, and that the
Solon that we see in the latter-day armchair of State must be a far, far
better thing than anything that obtained in Ancient Greece. Possibly, the
world having no use at all for Solons, the type is extinct. Be that as it
may, I am more than ever puzzled since I have studied the records of What
the Archon Did. If the world had got so far in the question of
imprisonment for debt five hundred years before Christ, why are we where
we are now nineteen hundred years since the Master set before us the true
doctrine of forgiveness of debts?
The Roman laws against the debtor upon which we have ultimately modelled
our own were equally harsh and would nearly satisfy the moneylender or
tally-man of any age. Upon notice, a debtor had thirty days in which to
discharge his debt. If he did not do so his creditor carried him off in
chains. Note, however, that he was not a slave, but his creditor had to
keep him in chains for another sixty days, during which time he had to
bring the debtor out on three successive market days to give his friends
an opportunity of paying up and releasing him. The creditor had also to
provide the debtor with a pound of bread a day. In these socialist days we
take that burden off the creditor's shoulder and a generous State feeds
the imprisoned debtor at the cost of the community. On the third market
day, if the debtor's friends were still backward in coming forward, the
debtor was killed and thrown into the Tiber, or his body was divided among
his creditors, which was the only dividend they received. If there was any
market for him he was sold into slavery. It seems that in the very early
days of Ancient Rome each creditor had a right to carve his pound of flesh
from off the debtor. Portia's point against Shylock:
... nor cut thou less, nor more,
But just a pound of flesh:...
was foreseen and provided for in the drafting of the Twelve Tables. It is
enacted in the Third Table: "After the third market day the creditors may
cut their several portions of his body: and any one that cuts more or less
than his just share shall be guiltless." Unless, therefore, the laws of
Venice amended or repealed the Twelve Tables, Shylock's case seems to have
been wrongly decided. What is at least curious is that the ancient idea of
debtor and creditor law embodied in those ancient statutes should be the
foundation of one of the most popular plays in the English language.
Some good people have found a difficulty in understanding Shylock's
outlook on life and cannot comprehend why a creditor should enjoy killing
a debtor. But, after all, it is equally strange why a creditor should
take pleasure in imprisoning a debtor. Yet to-day thousands of debtors go
to prison because they have not means to pay their creditors. The
difference between killing and imprisoning a debtor is a difference in
degree only. The principle is the same. The object of the creditor is,
perhaps, in the first place, to get repaid his debt; when he finds this is
impossible the death or imprisonment of the debtor merely satisfies his
desire for revenge. The ancient Romans were, in one way, a more practical
people than ourselves, for they threw the costs of this revenge direct
upon the creditor, whereas we throw it upon the taxpayer. If this
particular impost were made upon me in any direct manner it would almost
persuade me to be a passive resister.
I am glad, however, to remind you that in historical times at all events
the Romans did not carry out the law of the Twelve Tables to its uttermost
cruelty. The popular way of dealing with a debtor seems to have been to
sell him into slavery and then to credit him in your ledger with the price
he fetched--less the out of pockets--much as we do to-day when we issue
execution against chattels. In later years the slavery of debtors was
abolished and imprisonment much like our own was substituted, but the
Romans never had a lawgiver as wise and powerful as Solon to get rid of
imprisonment for debt altogether. And the Roman imprisonment for debt in
some shape or other runs through the social systems of the Middle Ages,
being harsh in one place and less cruel in another, and mitigated at one
date and aggravated at another. Always we find a feeling among the more
thoughtful of mankind that it is in itself a harsh and cruel system and a
desire among at least a few to help the victims of it in their distress.
Fynes Moryson, who was in Rome in 1594, tells us of a practice which then
prevailed in the Pope's State which might be introduced into Protestant
England to-day in a lively belief that it would be in accordance with the
tenets of the Christian faith and a certain hope that it would relieve
many a poor wretch in misery and despair. "If," he writes, "a man be cast
into prison for debt, the judges after the manner visiting frequently
those prisons, finding him to be poor, will impose upon the creditor a
mitigation of the debt, or time of forbearance, as they judge the equity
of the case to require, or if by good witnesses they find the party so
poor as really he hath not wherewith to pay his debt they will accept a
release or assignment of his goods to the creditor and whether he consent
or no will free the debtor's body out of prison."
At all periods of time we find the same uneasiness in the minds of rulers
and governors about keeping a poor man in prison for debt when he cannot
pay. The governors of English gaols will tell you that 90 per cent. of the
debtors lying in prison to-day for civil debt, rates, maintenance or
bastardy orders and small fines are too poor to pay. Yet here in England
our legislators cannot even get as far as the Papal State of the sixteenth
century in an exercise of charity to the poor and distressed. Pending the
abolition of imprisonment for debt, a Home Office visitation with power to
release the really unfortunate on the lines of the practical experiment
which Fynes Moryson wrote home about three hundred years ago would be
something to be going on with.
This, however, is a matter which is concerned with methods of reform. But,
before we deal with amendments of the law, it is necessary to trace
clearly and accurately the evolution of imprisonment for debt in England,
in order that we may understand how and why it exists to-day as a law that
can only be put in force against the poor.
CHAPTER III
OF IMPRISONMENT FOR DEBT IN ENGLAND
Oh let me pierce the secret shade
Where dwells the venerable maid!
There humbly mark, with reverend awe,
The guardian of Britannia's law;
Unfold with joy her sacred page,
The united boast of many an age;
Where mixed, yet uniform, appears
The wisdom of a thousand years.
SIR WILLIAM BLACKSTONE:
"The Lawyer's Farewell to his Muse."
I am honestly sorry to have to inflict a chapter of legal history upon
anyone, but for the life of me I do not see how the imprisonment for debt
of to-day can be intelligently appreciated until one knows something of
its lineage. To begin with, it may be news to some folk to learn that in
the merry days of Henry III. there was no imprisonment for debt at all. If
Godfrey the garlic seller or Hogg the needier owed Rose of the small shop
a tally for weekly purchases and would not pay, Rose, poor woman, could
not get an order to send them to gaol. Yet there is no evidence that trade
was thereby injured, or that there was any difficulty in Rose regulating
her credit-giving, or in Godfrey and Hogg and the rest obtaining as much
credit as they deserved. The first thing to remember is that England at
one period had no use for imprisonment for debt.
It occurs to me that, if I can persuade the man in the street to
understand how imprisonment for debt began and continued until it became a
great public scandal, and show how in the last hundred years little by
little its evil influence and extent have been abated with good results,
we shall be making great strides towards the restoration of that liberty
in England which in the matter of debt was the citizen's privilege in the
days of Henry III.
But the reason for the absence of imprisonment for debt in these early
feudal days is not so satisfactory to modern ears as one could wish. Lord
Chief Baron Gilbert, that crisp and accurate lawyer of the eighteenth
century, puts it very clearly when he says: "But there was no Capias for
the Debt or Damages of a Common Person, because the party having trusted
him only with personal Things his remedy was only on the personal Estate,
and the King had the Interest in the Body of his subject; and the Lord in
his _Feudatory_ or _Vassal_ to be called out to War or to labour for him;
and therefore none but the King could imprison him."
And this seems clear, that the reason a creditor could not imprison a
debtor was because in those days a debtor had only a limited interest in
his own body. The fighting part of his body belonged to the king, the
labouring part of his body belonged to his lord, and the king and the lord
were not going to have their rights and property in his body interfered
with because the subject and vassal had been foolish enough to run into
debt with another subject and vassal who wanted his money.
You will, indeed, find that the whole history of the law and the poor
seems to be a long struggling of the poor out of slavery and serfdom where
they had a certain guaranteed amount of food and protection from their
masters, similar in nature to that given to the ox or the ass or anything
that was his, into a state of freedom, so-called, in which they had given
up their rights to food and protection without getting any certain rights
of wages or the equivalent of wages in return. We are in the middle of
adjusting these things to-day, and the story of imprisonment for debt, and
why it is retained at the present only for poor people, is a page in the
curious English history of social progress.
As long as the debtor was a vassal having certain duties to perform for
the lord of the manor his lordship thought him as much worth preserving as
the game or venison within the curtilage of his park. It was for this
reason you could not take his body in execution. As you may know, when you
obtain a judgment in a court of law the next thing to do is to proceed to
execution; that is to say, the judge having given you judgment a writ is
granted to you whereby you get the sheriff to take your part and seize for
you either the goods or body of your opponent. The history of these
ancient writs is full of amusing folklore for those who love such things,
and we still call them by their old dog-Latin names, not for any
scientific purpose, but for much the same reason that the doctors write
their prescriptions in hieroglyphics and priests mumble Latin or
English--but always mumble--in a cathedral. It is the essence of a
profession that it should be mysterious and incomprehensible, otherwise
the common herd would not respect it and pay its fees.
And, prior to Henry III., if you got a judgment against your neighbour for
money owing by him to you, your remedies of execution were these. By a
writ of _fieri facias_ the sheriff could be commanded to seize the goods
and chattels of the debtor in satisfaction of the debt. This dear old
writ, the _fieri facias_, affectionately alluded to as the _fi. fa._ by
attorneys, bailiffs and others who have the handling of the fellow, is
still with us. I agree that without him the delivery of judgments in
courts of law would be mainly of academic and rhetorical interest. For as
Gilbert--not William Schwenck, but Sir Geoffrey the Chief Baron--puts it,
if a party trusts a man with personal things, then his remedy should be
against the personal things of the debtor, and this seems a principle of
common law and common sense as just as it is homeopathic. As our
latter-day Gilbert would have put it, "the punishment fits the crime."
But when you come to our other writ, the _capias satisfaciendum_, or "_ca.
sa._" as it is written in the absurd legal shorthand of the day, or "body
warrant" as it is still termed with brutal accuracy in Lancashire, then
you will find that in old days different considerations prevailed. You
were not allowed to seize a man's body for debt, but only his goods. And I
am glad to find myself setting forth high Tory doctrine and asking my
fellow citizens to return to the earliest common law of the land, for this
seems clear that originally, unless the action was for trespass _vi et
armis_, which was in the nature of a criminal matter, there was no remedy
against the body of the defendant. The _ca. sa._ whereby the sheriff was
ordered to seize the body of the defendant in execution could not issue at
the instance of a successful plaintiff at common law. In other words there
was no imprisonment for debt.
Our forefathers recognised what we seem to have partially lost sight of,
that as credit could only be given commercially to a man with goods, it
was fair and just that his goods should be seized if he did not carry out
his contract. But for reasons of their own--no longer sound as reasons
to-day, it is true--they refused to allow a man to mortgage his body for
goods. Body warrants only issued against criminals or in actions of a
semi-criminal character. It will be reassuring to those conservative minds
who fear the abolition of imprisonment for debt to remember that there was
a time in England when it did not exist, and that if we abolish it to-day
we are working on old-fashioned and constitutional lines. Imprisonment for
debt has not the sanction of antiquity, and a desire to sweep it away must
not be put down to the wild and wicked desires of a political futurist
architect, but rather to the pious hopes of one who is in deep sympathy
with the best features of the Norman and Early English social institutions
of his native land.
To tell the long story of the statutory evolution of imprisonment for
debt from the Statute of Marlbridge, 52 Henry III. c. 23, to the Act for
the Abolition of Imprisonment for Debt--so-called--of 1869, would be out
of place here. It is enough to know that little by little the principle of
the right of one man to seize the body of another in an execution for debt
became recognised by statutes and by custom until the wrongs it caused
reached such a scandalous pitch in the eighteenth century that some reform
of it became inevitable.
The more modern contests over its partial mitigation from time to time
throw a direct light on the differences of opinion upon the matter of
to-day. It will be seen that there have always been two schools of thought
among politicians. One school was clear, that to tamper with imprisonment
meant ruin to trade; the other held--what I take to be the true
gospel--that a man ought not to be allowed to obtain credit on the
security of his body.
Until the end of the eighteenth century the harshness and cruelty of
imprisonment for debt received little attention. The history of the
debtors' prisons, the Fleet, the King's Bench, the Marshalsea and the City
Compters, are pages of the story of our law that no one can read to-day
without shame. Yet the Howards and Frys who called attention to the facts
met with just as little encouragement and attention from the rulers of the
country as anyone does to-day who desires to put the coping stones on the
completed work, the foundations of which were laid by these great
reformers.
The extraordinary results that took place through imprisonment for debt
as it existed in the eighteenth century are surely beyond parallel in any
legal system. The plays and fictions of the time are full of instances.
You remember when Roderick Random finds himself in the Marshalsea he meets
with his old friend Jackson and asks him about his _amour_ with the lady
of fortune: "You must know," replies Jackson, "that a few days after our
adventure I found means to be married to that same fine lady you speak of
and passed the night with her at her lodgings, so much to her
satisfaction, that early in the morning, after a good deal of snivelling
and sobbing, she owned that far from being an heiress of great fortune she
was no other than a common woman of the town who had decoyed me into
matrimony in order to enjoy the privilege of a _femme couverte_, and that
unless I made my escape immediately I should be arrested for a debt of her
contracting by bailiffs employed and instructed for that purpose." Upon
hearing this poor Jackson escapes and serves for a few months as surgeon
of a sloop, but, on his return, is arrested for a debt of his wife's and
comes to live at the Marshalsea on half pay.
Nor is there anything wildly improbable in the story. Smollett had been in
a debtor's prison himself, and very likely had heard the story at first
hand, for many equally extraordinary stories in real life are well
authenticated.
There was the strange case of the lady who married a man under sentence of
death to get rid of her debts, and was greatly upset when her husband was
respited and sent to the colonies. But perhaps one of the most curious
stories is that of the dear old blind spinster of Clerkenwell, with a
fortune of a thousand pounds, who took a deep interest in the career of an
industrious shoemaker's apprentice and made him presents of clothes and a
watch and lent him ten pounds. When he was out of his articles and was
about to go home to Leicestershire and settle down there, he was arrested
for the loan and the attorney's bill of costs and the "garnish" at the
lock-up to which he was taken. After a few days the kind-hearted lady
visited him and offered him three alternatives. He might pay the money; go
to the debtor's prison for the rest of his life; or marry her. He chose
the last alternative and was kept in the sponging house until his wedding
day.
These stories are but a sample of the iniquities that were going on in
that day, and yet then, as now, the feeling of legislators and business
men seems to have been that it was dangerous to trade and business to
sweep this horrible system away, so blind are people to the wrongs they
see every day, so dull are ears to cries of pain and distress that are
continuous and never cease. It would seem as though the conscience of
mankind can only be startled into action by some catastrophe, some tragedy
obviously brought about by bad government and bad laws, and not until then
will it translate its knowledge of evil into demand for reform.
The tragedies of imprisonment for debt occurred, but they took place
behind closed doors and the world only heard of them by slow degrees. At
length, however, the constant repetition of the miseries of the poor
debtors who languished in prison, wasting their lives and eating out their
hearts in despair, began slowly to convince the man in the street that
there really was something wrong with the world and that the cup of human
misery of some of their fellow creatures was slopping over into the saucer
of despair. Timid reformers began to think something might be done. The
arguments then, as now, were all one way, but then, as now, there was no
one to listen to them. Good men had raised their voices to point out the
wrong-doing that was going on, and the unnecessary wretchedness that was
being caused, but nothing much came of it. There were a few desultory and
ineffective movements towards discharging poor debtors, but the matter did
not greatly interest mankind, and there seemed to the eighteenth century
mind no very clear reason why a debtor once in prison for debt should ever
be released. To-day, in the same way, it is difficult to persuade the
average citizen that there is any injustice in a debtor being sent to
prison for debt. The attitude of mind about the thing is not greatly
altered, though happily the amount of injustice and wrong-doing has been
lessened.
It was not, indeed, until the beginning of the reign of Queen Victoria, a
time of great hope for the poor and distressed, a period which has not
inaptly been called "the springtime of social reform," that any practical
movement was made. I myself keep March 31st as the birthday of the
movement for the abolition of imprisonment for debt, but anyway it is a
red-letter day in the history of English literature and worthy of great
honour. For on that day, in the year 1836, the first number of "Pickwick,"
appeared and there is no doubt that the account of the Fleet prison in
that volume has made it the popular text-book of legal reform in these
matters. If "Pickwick" in 1836 was not the _causa causans_ of Lord
Cottenham's Bill to amend the law of insolvency which was introduced in
December, 1837, there is no doubt that Dickens' stories of the cruelty of
imprisonment for debt supplied the motive power necessary to pass it by
rousing the public conscience to insist upon something being done.
The point of particular reform aimed at by the Bill was to abolish what
was called arrest on mesne process. It is an absurd term, and it was a
still more absurd thing. The wonder is that it had survived as long as it
did. Mesne process, translated into English, means middle process, and the
idea was to lock a defendant up in the middle of the trial and keep him
there in case it turned out at the end of the proceedings that he owed the
money. It was as popular with the sharks of the eighteenth century as the
present imprisonment is with the moneylenders and tally-men of to-day. Any
person who would make an affidavit that another owed him twenty pounds or
more could lock him up pending the trial and, unless the victim could find
the money and pay it into Court, he remained in the sponging house until
the trial came on. Harry Warrington was served so, if you remember. Two
gentlemen came from over the way, "one of them takes a strip of paper out
of his pocket and, putting his hand upon Mr. Warrington's shoulder,
declares him his prisoner. A hackney coach is called and poor Harry goes
to sleep in Chancery Lane." Certainly Harry owed the money and had been
reckless and extravagant enough, but even then the method of arrest
strikes us to-day as a little high-handed. Nor was it always made use of
with honesty. To bold rascals it was a very perfect machine for the
wickedest blackmail. An affidavit of debt--and eighteenth century
affidavits were no nearer the truth than those of the present century--was
all that was required, and if in the end the affidavit was found to be
false, the only remedy was to prosecute the swearer of it--if you could
find him.
A case that Lord Denman mentioned in the debates in 1837 created a good
deal of uneasiness in the public mind. A certain Portuguese nobleman, the
Duke de Cadaval, on landing at Falmouth, or when he was residing at
Plymouth, was arrested on a pretended debt, thrown into prison, and
obliged to pay a large sum of money to procure his release. He afterwards
recovered in an action for malicious arrest heavy damages, but he never
received a penny of them, nor is there any record that the false witnesses
were punished for perjury. There are many stories of this kind, and it was
an obvious result of the system of arrest on mesne process. One would have
thought that there would have been no difficulty about abolishing a legal
machinery that brought about such injustice, but, in truth and fact, it
was quite otherwise. Indeed, the people who wanted to abolish the
excellent and business-like system were regarded as very pestilent and
turbulent busy-bodies by the average citizen.
Another incident of imprisonment for debt at this date was that if a
creditor preferred to issue a _ca. sa._ to a _fi. fa._ and took the body
of the debtor in preference to the property of the debtor, he thereby
discharged the debtor. If, therefore, the debtor preferred imprisonment to
paying his debts, the law afforded the creditor no other remedy. There
were instances of debtors remaining in prison for over twenty years well
able to pay their debts, but preferring to live in luxury within the rules
of the prison. _Re Pickwick_ is perhaps the popular leading case on this
point. But whilst we remember with pleasure how the law enabled our dear
friend to outwit for a time those wily attorneys Dodson and Fogg, do not
let us forget the terrible sights he saw in the Fleet.
The Chancery prisoner, the fortunate legatee whose lawyers had had the
thousand pounds legacy, and who was in the Fleet, mending shoes for twenty
years because the loom of the law had woven a shroud of costs round him
and buried him in prison--he was no fiction. His heart was broken when his
child died and he could not kiss him in his coffin. There he remained
living a solitary lingering death, lonely amid the noise and riot of the
Fleet, until God gave him his discharge. This and many another case was
before My Lords and known to the intelligent Commons when the question of
the abolition of arrest on mesne process came up for discussion in 1837.
It is to Lord Cottenham, as I have said, that we owe the statute which,
to use Mr. Atlay's phrase, "abolished the bane of Mr. Micawber's
existence, imprisonment for debt on mesne process." Nor must it be thought
that it was done without a struggle. Lord Lyndhurst said, and no doubt
truly, that, judging from the petitions, he should be within the truth in
saying that the Bill was very unpopular. The petitions were at least ten
to one against the Bill. There was no more enthusiasm about mitigating
imprisonment for debt then than there is to-day. The history of these
things is always the same; the traders objected to the abolition of
imprisonment for debt, the newspaper proprietors strenuously opposed the
reduction of the Stamp Acts, the doctors fought against national
insurance. Yet, when the horrible thing is done, we find them smugly
prospering on the reform.
Lord Brougham, who from the very first had always held instinctively the
true faith in these matters, pointed out to a reluctant House how credit
was imprudently given to the real injury of the customer who is induced to
buy what he cannot pay for, and to the injury of those who do pay what
they do owe, but who pay the dearer in proportion to the bad debts which
the tradesman is led to let others contract with him. Further, he
emphasised the wrong done by clothing an insolvent person with an
appearance of credit by lending him more goods which serve as a bait or
decoy to others that have not yet trusted him. He laid down the principle
that debt should never be treated as a crime and still less as a crime to
be punished at the sole will and pleasure of the creditor, and eloquently
called upon the peers to wipe out this foul stain from our civil code.
Arrest on mesne process was abolished, not ungrudgingly it is true, but it
came to an end, and a commission was set up in 1839 to inquire and report
upon the whole system of imprisonment for debt. This commission ultimately
reported in favour of abolition. In 1844 another Bill was introduced to
distinguish between cases where it could be shown that the debtor was an
innocent fool and not a culpable contumacious defrauder. It was not of
much avail as a social reform, but may be fairly described, perhaps, as a
worthy effort. The brightest reading in its history for us to-day is the
debate in which Lord Brougham, with savage eloquence, rubs it in--the
modern slang expresses Brougham's method so accurately--and jeers at the
opponents of imprisonment for debt now that all their Cassandra prophecies
over the abolition of imprisonment by mesne process have proved themselves
to be worthless. Abolition of this system had not diminished credit, and
had not raised any difficulty in citizens obtaining credit. Then, as now,
these were the trade arguments against reform solemnly used by business
men, officials and lawyers, and though, on each occasion when the reform
has taken place, they have been found to be the hollowest nonsense, yet
they are repeated to the reformers of to-day with the same pompous
effrontery with which they were offered to Lord Brougham.
We now come to 1869, in which year the present state of the law was
created, and it is this law which seems to me so unjust to wage earners
and poor people who are in debt, placing them as it does in conjunction
with the Bankruptcy Laws in such a wholly inferior position to that of the
well-to-do citizens. In order to understand the exact legal position it
is, I fear, necessary to deal with the matter in some little detail.
The intention of the Legislature at the time seems to have been right
enough. It was desired, no doubt, that a fraudulent debtor should be
punished and that an honest debtor should not. If a means could be
invented to carry out this principle no one would utter a word against it.
A fraudulent debtor is, I take it, a man who, having ample means over and
above the reasonable necessities of himself and his family, conceals them
or places them in fictitious names and then defrauds his debtor and
refuses to pay him.
I should be in favour of more stringent measures being taken against the
fraudulent debtor, for one meets him every day, well-to-do and smiling,
with a bill of sale on his furniture and everything in his wife's name.
But he is the curled darling of the law. He makes use of the law to
protect himself and his frauds, and the Debtors Act, which was intended to
abolish imprisonment for debt, has no terrors for him, whilst under its
provisions hundreds of weekly wage earners are imprisoned.
As Sir George Jessel said, the real intention of the Debtors Act, 1869,
was to abolish imprisonment for debt for honest debtors and to retain the
right of judges to punish fraudulent debtors. Many of the sections of the
Act are framed, and to some extent assist, in the excellent aim of making
it hot for the naughty and wicked debtor who has cheated or defrauded his
creditors. Why is such a person punished? asks the Master of the Rolls. I
give the answer in his own words. "Simply because he is a dishonest man.
He need not perhaps be called a thief in so many words, but he is a man
who takes or keeps money belonging to other people, and he is punished
accordingly." Instances of such are defaulting trustees and similar
misdemeanants, and, so far as the Act provides for their punishment, we
have no quarrel with it.
Now no one would contend that the system of imprisonment for debt as
carried out in the County Courts is a system directed in the main against
dishonest men. Improvident, careless, foolish and childlike these poor
defendants in the County Court may fairly be described; but if a day of
judgment audit could be carried out, and a balance struck on the item of
"honesty" as between the working-men debtors and the class of traders who
give them credit, I make little doubt which class, as a class, would show
the better figures. No, we do not imprison in the County Court for
dishonesty _per se_; dishonesty may or may not be a feature of any
particular case, but it is not an essential.
The order for imprisonment is made under section 5 of the Debtors Act,
1869. That is the tally-man's charter. I am sorry to bore anyone with all
these sections and statutes, but there is such a lot of inaccuracy written
and talked about the matter that it is best to set down the actual
enactment. We must remember then that the Act, being an Act for the
abolition of imprisonment for debt, had begun by enacting in the fourth
section that "with the exceptions hereinafter mentioned no person shall be
arrested or imprisoned for making default in payment of a sum of money."
These last words state quite clearly the true principle of what the law
ought to be. Unfortunately for the poor the special exception made for
them has only too truly proved the rule.
The opponents of abolition were but too successful in their endeavours to
make inroads upon the thoroughness of the proposed reform, and one of the
exceptions was called "a saving power of committal for small debts." It
might have been better described perhaps "as a saving power to imprison
poor debtors." This is the famous section 5 of the Debtors Act, 1869, over
which so much controversy has since arisen, on the working of which two
important commissions have sat and reported, and under which we may
proudly claim to be one of the last civilised countries that clings to a
system of imprisonment for debt.
It is necessary to set out the section at some length, for it has a
googlie element about it and is not so innocent as it appears on the
surface. It first sets out "that any Court may commit to prison for six
weeks any person who makes default in the payment of a debt or instalment
due in pursuance of a judgment." That, of course, is plain sailing
imprisonment for debt. Then, however, follows the sub-section--I again
apologise for troubling you with all this, but it is really a good
citizen's duty to understand it--which causes all the worry. It is enacted
in sub-section (2) "that such jurisdiction shall only be exercised where
it is proved to the satisfaction of the Court that the person making
default either has _or has had_ since the date of the order or judgment
the means to pay the sum in respect of which he has made default and has
refused or neglected or refuses or neglects to pay the same."
It is the words that I have printed in italics that hit the poor man and
the weekly wage earner, for of course it is generally provable that,
although he has no present means to pay a debt, he _has had_ since the
judgment means to pay which he has spent on the maintenance of his family,
or, if you will, on beer or tobacco, or picture palaces, or, in a word, as
good solvent middle class people would say--improvidently.
The further matters enacted are all sensible enough, granted you approve
of the main principle of imprisonment for small debtors. They deal with
proof of means of the person making default, allowing such proof to be
given in such manner as the Court thinks just, and for these purposes the
debtor and any witnesses may be summoned and examined on oath according to
the prescribed rules.
The other material points of the section are that a County Court judge
must exercise his jurisdiction in open Court, he may order the debt to be
paid by instalments, he may also make continuous committals on each
unpaid instalment, he may vary and rescind the order, and the imprisonment
when suffered does not distinguish or discharge the debt or other remedies
of the creditor. The debtor can take his release in payment of debt and
costs.
Anyone who studies this Act of 1869 and comes to the conclusion that this
system is anything less than imprisonment for debt, and not imprisonment
for fraud, must, I think, be driven to argue that the men who drafted the
Act called the Act an Act for the abolition of imprisonment for debt,
called section 5 a saving clause for continuing imprisonment for small
debtors in certain cases, and did not understand their business. As a
matter of fact they knew their business very well indeed, and they carried
it out faithfully and well.
What happened undoubtedly was this: Parliament as a whole was out to
abolish imprisonment for debt. There were a lot of old-fashioned folk then
as now, who wanted to retain it. Compromises were made. It was agreed that
there should be abolition, it was also agreed that there should be
exceptions. The exceptions readily granted were cases of fraudulent
trusteeship and the like. This was not enough for the old gang, so the
promoters of the reform threw in poor persons owing small debts. The poor
had as few friends in Parliament as the fraudulent and they were huddled
together into the same bundle of exceptions as a sop to the opponents of
the Bill. When folk describe our present system in the County Court as
anything other than imprisonment for debt, a legitimate offspring of its
noble Norman ancestor _capias ad satisfaciendum_, they do it in ignorance
of the legal and political history of the Debtors Act, 1869.
I should like to have set out much of the debate in the House of Commons
on the second reading of this Bill. Sir Robert Collier, the
Attorney-General, openly expressed his regret that imprisonment for debt
was going to be retained in the County Courts, and several members spoke
wisely about the hardships then inflicted on the poor and the
undesirability of continuing them. But the following extract from a speech
of Mr. McMahon shows that no one at that time was under any delusion about
what was going to be done. "When," he said, "arrest on mesne process was
abolished shortly after the passing of the Reform Bill it was then said
that credit would be disturbed, and that traders would not be able to
carry on their business. But these forebodings were purely imaginary, and
in the same way he believed no evil would attend the good that must
undoubtedly result from the final abolition of imprisonment. If, however,
they allowed the rich man to escape under the bankruptcy system they ought
not to admit the poor man to be liable to imprisonment, for by so doing
they would certainly be open to the charge of having one law for the man
in broadcloth and another for the man in corduroys."
Here the warning is clearly given by a man on the spot, that what they
were about to do was to set up a system unfair to the poor, and there was
really no doubt in the minds of any of the legislators of the day that
they were deliberately retaining imprisonment for debt for the poor. I
want to insist on this point because one of the stumbling blocks in the
way of reform to-day is the strange belief, fostered by the tally-man and
his friends, that in some mysterious way imprisonment for debt has really
been already abolished and that the working classes really go to prison
for contempt of court or some other reason. There is no truth in this
whatever.
The Attorney-General who introduced the Debtors Act, 1869, may surely be
credited with understanding what it was intended to do. He knew well
enough that his Bill was going to abolish imprisonment for debt for the
rich and retain it for the poor. He pointed out that he was making
bankruptcy cheaper and more stringent. It would be obviously absurd, he
said, to make a day labourer a bankrupt, and that brought him to the very
difficult question of County Court jurisdiction. At that time the County
Court had a jurisdiction to punish for fraud as an incident of debt and
also to imprison for debt. He proposed to take away the jurisdiction to
imprison for fraud and to leave fraudulent debtors, both rich and poor, to
the Criminal Courts. "But then," he continued, "came the other question of
County Court imprisonment where a man was able to pay his debt, but would
not do so. He did not regard that imprisonment as a mere punishment for a
past offence _but it was a process of imprisonment for the purpose of
compelling the payment of a debt_, and it was a process very analogous to
the principle of the Bankruptcy Law." He came to the conclusion, after
further argument, "that this power of imprisonment in the one case he had
mentioned must be retained."
When an Attorney-General in 1869 brings in a Bill to abolish imprisonment
for debt and deliberately tells us that he retains one class of
imprisonment for debt, it is inconceivable why people to-day should strive
to make out that the system we are working is not imprisonment for debt,
but something else. Unless it be that the advocates of imprisonment for
debt know in their heads that it is an evil, out-of-date system, and they
have an instinct that it smells more sweetly under some other name.
From 1869 to the present there has been no further reform. Many hope that
there never will be any, but for my part I have no doubt it will come
along, not in my time, perhaps, but whenever the right moment may be. From
1869 until to-day over three hundred thousand English citizens have been
actually imprisoned who have not been guilty of any crime whatsoever. They
have been imprisoned mainly for poverty or, if you will, for
improvidence--that blessed word that so insidiously describes in the poor
that failure in economic asceticism, that lack of cold self-denial of
luxury and extravagance, that absence of patient thrift and simplicity of
life--characteristic features which are never wanting in the beautiful
lives of those social classes above them that the poor must learn to look
up to and to imitate.
CHAPTER IV
HOW THE MACHINE WORKS
Roll on, thou ball, roll on!
Through seas of inky air
Roll on!
It's true I've got no shirts to wear,
It's true my butcher's bill is due;
It's true my prospects all look blue--
But don't let that unsettle you!
Never _you_ mind!
Roll on!
W. S. GILBERT: "To the Terrestrial Globe."
I fear the earth will do a lot of rolling on before we abolish
imprisonment for debt, but very likely I am exhibiting a somewhat senile
haste in the matter which is unbecoming. To me it appears strange that,
whilst in every other science the professors of it are making earnest
efforts to place the result of their studies to the credit of mankind, the
law seems more incapable than theology of assimilating new ideas and
getting into step with the march of time. I have no hesitation in saying
that the County Court, as a debt-collecting machine, is a one-horse wooden
antiquity only fit for the scrap heap. If you went down to Euston and
found them coupling up Puffing Billy to the Scotch Express and the engine
driver dissolved in tears, you would understand the kind of hopeless
feeling that oppresses me every morning when I sit down to try a hundred
judgment summonses.
For how can they be said to be tried in the sense in which an Englishman
is supposed to be tried before he is deprived of his liberty. There is
very little evidence, often the defendant makes no appearance and does not
even send his wife to tell the tale for him. He cannot afford to leave his
work and she ought not to be asked to leave her babies. The word,
therefore, of the plaintiff, or, more probably, the debt collector--and
many of these men, making it their business and dealing daily with the
Court, are far more accurate and careful than the plaintiffs
themselves--this is all you have to go by. The law, as I told you, left it
entirely to the taste and fancy of the judges what evidence they should
receive, and though nowadays all judges honestly endeavour, I think, not
to carry out the law to the full extent of its cruelty, yet naturally
different men hold different views of the rights and liabilities of the
poor, and so there is no sort of equality in the treatment they receive in
different districts.
Thus we have in the working of imprisonment for debt everything that is
undesirable. The liberty of the subject is at stake, but there is no right
of trial by jury, such as the fraudulent bankrupt or any other
misdemeanant is entitled to; the evidence on which the debtor is convicted
and sent to gaol is any evidence that the judge thinks good enough, and
within the limit of six weeks the imprisonment is anything that each
particular judge determines. There is, of course, no appeal, and when the
prisoner comes out of gaol he still owes the debt, though he cannot be
imprisoned again for the same debt or instalment. The multiplicity of
these proceedings is appalling. There are over a million small debt
summonses issued every year and nearly four hundred thousand judgment
summonses, of which about a quarter of a million are heard. What a waste
of time and energy it all means. Judges, registrars, solicitors, bailiffs,
debt collectors, the piling up of costs and fees on to the original debt,
the dragging off to gaol of an occasional debtor _pour encourager les
autres_, the breaking up of some poor home, the blackmailing of friends
and relations very little better off than the poor debtor himself, the
squeezing of the pittance out of the bellies of the little children to
keep the father out of prison--what a picture to leave on the canvas of
our own generation for our grandchildren to scoff at.
And the business result of it! Even when the debt is paid--if it is
paid--after years of waiting and hours spent coming down to the Courts
seeing if the money is yet paid in--or 20 per cent. paid to a debt
collector to do it for you--when all is finished, would it not have been
far better if you had recognised that you had made a bad debt and stood
yourself a few shillings worth of righteousness in forgiving your debtor
his indebtedness? Certain it is that the system is useless to, and very
little used by, the respectable individual creditor. Indeed, if he tries
to use it, he stumbles into so many pitfalls and finds the procedure of it
so troublesome and uncanny that he very often fails to stay the course,
and, after a few wasted days, goes his way and leaves the debtor to go
his. The best customers of the County Court, indeed the only people to
whom the system of imprisonment for debt is of any real service, are those
traders who carry on a business which can only be carried on and made to
pay by reason of the sanction of the shadow of the gaol which is of the
essence of the contract.
The tally-men, the moneylenders, the flash jewellery touts, the sellers of
costly Bibles in series, of gramophones and other luxuries of the mean
streets, these are the knaves the State caters for. For these businesses
are based, and soundly and commercially based, on imprisonment for debt.
The game is to go forth with a lot of flash watches, persuade a workman in
a public-house or elsewhere to sign a paper that he has bought one--he
always says, silly fellow, that he thought he had it on approval--and when
he fails to pay his instalments put him in the County Court. I have known
a pigeon-flying working man earning thirty-five shillings a week buy a
watch priced eight pounds which had a second hand and a stop movement for
timing that momentarily overcame his better sense of economy. Without
imprisonment for debt it would not have paid the servant of the Evil One
to have led him into the temptation.
To these traders the County Court is of real value. They issue their
plaints in bundles, they take out judgment summonses in batches of thirty,
fifty, or a hundred at a time, they can afford to have a skilled clerk
well versed in the procedure of the Court to fill up the papers, and can
run the machine which a complacent State puts at their disposal with very
good results to themselves. I remember a firm starting in Manchester with
the sale of some sort of horse medicine--good or bad is really no matter.
The method of business was delightfully simple. The proprietor travelled
round in Herefordshire and Devonshire and persuaded the farmers to try
some of the horse medicine. A form was signed which was a contract of sale
and a promise to pay in Manchester. This gave the Manchester Court
jurisdiction to issue the summonses, which were for sums of under two
pounds. Letters came complaining that no contract had been intended, that
the stuff was worthless, etc., but no one turned up and judgment went by
default. The success of the business was its ruin. The plaintiff, tired of
filling up the forms of the Court and well knowing that none of his
customers would pay without process, actually had affidavits of his own
ready printed, and this cynical admission of the fraudulent nature of his
trade--for an honest man would not expect nearly all his customers to
refuse to accept goods ordered--led to his undoing. Inquiries were made,
one or two farmers were induced to appear and give evidence, and his
business career came to an end.
I am not, of course, saying that the County Court exists only for those
who have the courage and effrontery to make the full use of the machine as
an accessory to shady trading. But it can be demonstrated that
imprisonment for debt is the mainstay of such trades as moneylending and
credit drapery and all those low trades that make their profits by
foisting shoddy luxuries on to working men and their wives.
Some time ago I made a careful examination of some 460 judgment summonses
taken consecutively. The figures were from the Manchester Court. I found
the following were the trades represented:--
Drapers 154
General dealers 130
Jewellers 60
Grocers 35
Moneylenders 24
Doctors 10
Tailors 5
Miscellaneous traders issuing less than four summonses 42
---
460
General dealers, it must be remembered, are traders in a large or small
way of business who will sell furniture, drapery, clothes, cutlery, or
anything you like, on the instalment system. Their methods of trading are
tally-men's methods.
If this list be looked at, it will be seen that the general public make
very little use of imprisonment for debt. The substantial shopkeeper and
ratepayer is scarcely represented at all, the grocers and a few of the big
general dealers being the only people who pay rates. Some of these general
dealers it should be remembered are limited companies having numerous
agents paid by high commissions and spending large sums in advertising.
Their prices are apparently low, but the quality of their goods leaves
much to be desired. Now what worries me is, why should the State keep
Courts going for men of this class? The only creditor in that list for
whom one can have the least sympathy is the doctor, and the National
Insurance Act has now put him on a cash basis, so that in a list taken
to-day he would not appear so often. It is clear from these figures that
at a cost to the general body of taxpayers you are encouraging a bad class
of parasite traders to choke the growth of thrift among the working
classes.
For unless you make it ruinous to the creditor for the credit to be given
you will never stop it. How can a man at work hinder credit being given
through the agency of the wife when the law permits it and caters for it
by providing the trader who lives by it with a special debt-collecting
machine without which this class of trader were impossible. I have known
cases where a working man's wife was dealing with nineteen different
Scotch drapers. What wages can satisfy such an orgy of drapery as that?
How often, too, do men and women buy watches to pawn them for drink or a
day at the races? What is this but an evil and ruinous form of
moneylending? And what makes these things possible among our poor people?
The law siding with the knave against the fool; the saving clause for the
imprisonment of poor debtors in the Act of 1869.
And whereas I shall show you that bankruptcy and divorce are the luxuries
of the rich, so it is only fair, I think, to allow that imprisonment for
debt is a distinctive privilege that the law reserves for the poor. A man
among the well-to-do classes is never imprisoned for debt; the
wage-earners are practically the only people who are subject to it.
The governor of a gaol reported a case to the last Select Commission that
sat and did nothing on the subject. A labourer was sent to his custody for
twenty-one days in default of payment of four shillings and costs, five
and ninepence in all. How can a State for very shame prate about the
extortion of moneylenders when it adds forty per cent. on to a small debt
like this for costs? The man was a widower with four children, the eldest
of whom was thirteen, and the youngest two or three years old.
When father went to prison the children went to the workhouse. That is all
part of the system. The debt was a tally-man's debt for clothes supplied
to his late wife. The governor sent it as a typical case for the
Commission to consider. "As I believe," he wrote, "that there is an idea
of having the law on imprisonment for debt amended."
The good governor was, of course, entirely mistaken about that. There is
no such idea, except in the heads of dreamers and visionaries like Elisha
and the good governor and myself, and we do not count. So his report ended
in nothing, and remains on record as a typical result of the working of
imprisonment for debt in a civilised European State in the early part of
the year of our Lord 1909.
I should like to leave the matter there as a horrible example, for so it
is, but I am a man of truth--and, in fact, the poor labourer was not kept
in gaol. It was afterwards discovered that the good governor, when he
investigated the man's case at 9.30 a.m. on the morning after his arrest,
had paid his debt for him and set him free. You remember that Elisha in a
similar case performed a miracle by filling several jars with oil. For
myself, I think the good governor's was an even nobler deed.
And when the supporters of this wretched system tell you that very few
people actually go to gaol, that is, in a sense, true. There are only
about six or seven thousand, say, who go to prison on a hundred and odd
thousand warrants issued. The number too, is decreasing. This is not,
however, to the credit of the law, but because, as I shall show, the law
is not strictly administered, and also because the public conscience, what
Lord Haldane so graphically described under the German title
_Sittlichkeit_, is against it. The habit of mind, custom, and the right
action of good citizens do not sanction enforcing debt by imprisonment. It
is only the greedy, low-down citizens who deign to use it. But the matter
is lightly regarded. A few thousand poor people doing time for trumpery
debts cannot, anyhow, be allowed to trouble the sleep of the middle-class
voter, and what am I but an untaught knave to bring their slovenly,
unhandsome corpses betwixt the wind and his nobility?
It is not only the very poor who are dragged to gaol that suffer. The
system is really one for blackmailing the poor man's friends and
relations. You ask a debtor when he comes before you on a second
instalment of a debt: "But you managed to pay the first instalment?"
"Yes," he replies; "but I had to borrow it from my brother-in-law, and I
have not paid him back yet, and he can ill-afford to lose it."
I have heard that story hundreds of times, and I know it is often a true
one. Bailiffs will tell you that on the road to gaol a prisoner will ask
to be allowed to call at various houses, looking for an Elisha, and if he
cannot find anyone to work miracles nowadays he does very often find
someone with five and ninepence and a kind heart. The poor are very good
to one another in distress, and it is better that a brother man should be
saved from gaol and restored to his home and children than that the
landlord should have his next week's rent.
In the bad old days a County Court judge openly said that he found it
better to commit to prison for six weeks rather than any shorter period,
for he found that the longer the period for which he committed people to
prison the shorter the term served, "because when they were committed for
the whole six weeks they moved heaven and earth among their friends to get
the funds to pay."
Friends of the system of imprisonment for debt call this "putting the
screw on." I think "blackmailing" is the straighter English--but any dirty
old phrase will do.
And an enormous evil, the extent and results of which can only be guessed,
is that the power to send a fellow citizen to gaol for debt, the power to
issue or not to issue a warrant for his arrest at any moment after he is
in default, places a man and his family so entirely at the mercy of his
creditor that, if the creditor be a man of bad character, terrible results
may follow. Few of us probably have not heard stories of an evil-minded
creditor using his power to seduce the virtue of a wife in her husband's
absence. There is certainly truth in such stories. Human nature is the
same in narrower lanes than Park lane. The tally-man plays on the wife's
love of finery, she gets into debt, her husband knows nothing of it. As
long as the wife is complacent nothing is heard of the debt. I do not say
such scandals are common, but I have heard enough of such stories to know
they are not fairy tales. Human nature being what it is the wonder is that
these dramas are not more often enacted. When the poor have their Divorce
Courts no doubt the evidence of them will be forthcoming, meanwhile they
rest mainly on the complaints of women of insults offered to them, which
may be fabrications, but are not always so. What a responsibility rests on
a State that maintains a system which leads to such evils.
Another and less terrible affair is the political influence wielded by a
grocer or draper over the free and independent voter whom he can put in
gaol for twenty-one days if he fails to see eye to eye with him at
election times about Disestablishment or Tariff Reform. Yet this is one of
the minor evils of the working of the Debtors Act of 1869. In a
hard-fought Lancashire election which ended in a tie there was a great
flutter and to-do caused by the arrest on the eve of the poll of some
earnest debtor of one colour by an equally earnest creditor of another
colour. It may, of course, have had nothing to do with the election--but
one never knows. Anyhow, it happened, and it was certainly not a desirable
incident from the point of view of the losing candidate.
The theoretical arguments against the abolition of imprisonment for debt
are few. The chief one is that a working man would be unable to get credit
in times of distress. Personally I do not believe it. The argument has
been used on every occasion when any legislative step has been taken to
mitigate imprisonment, for always the prophecy has been: trade will suffer
and individuals, for want of credit, will starve. On every occasion the
facts have obstinately refused to honour the prophecy after the event. I
am inclined to back history against prophecy in this matter. Credit will
be given to a working man of good character to a reasonable amount, but he
will not be tempted, as he is to-day, to mortgage his future wages on the
security of his body for every passing whim. Beer is a cash business,
betting is a cash business, picture palaces, railway trains, tram cars,
slot machines, are all run on a cash basis, yet no one will pretend that
the working man does not get as much as he wants of the goods and services
of all of them.
To-day the temptation, and very largely, I am sorry to say, the practice,
is for a workman to make the brewer and the betting man first mortgagees
of his weekly wages, whilst the draper and the grocer are too often very
ordinary shareholders indeed, obtaining an irregular dividend ranking
after the Treasury fees of the County Court. Can anyone honestly say that
it would not be better for the draper and the grocer to have their
working-class business put on a cash basis. Abolish imprisonment for debt
and the grocer and draper will demand cash in advance or, at the worst,
weekly bills. The workman will then be face to face with the immediate
question of whether he prefers to spend his wages in drink and pleasure
for himself or food and clothes for his wife and children. I have no doubt
what his answer will be. The working man is of the same nature as
ourselves. In the old days of general imprisonment for debt everyone lived
in debt. The middle classes were tempted to live beyond their means and
did so, and the Micawbers of the world were always being carried off to
prison, leaving their families in tears. Now such a state of things is
unknown. Through the great private and public stores the middle classes
buy for cash the best material at the cheapest prices and live within
their incomes. The result in their lives is matter of social history. Why
is it to be supposed that any different result will be arrived at when the
working classes are no longer tempted by a false system of credit?
"The motive of credit," says Dr. Johnson, "is the hope of advantage.
Commerce can never be at a stop while one man wants what another can
supply; and credit will never be denied whilst it is likely to be repaid
with profit. He that trusts one whom he designs to sue is criminal by the
act of trust: the cessation of such invidious traffic is to be desired
and no reason can be given why a change of the law should impair any
other. We see nation trade with nation where no payment can be compelled.
Mutual convenience produces mutual confidence and the merchants continue
to satisfy the demands of each other though they have nothing to dread but
the loss of trade."
This argument was against imprisonment for debt as the worthy Doctor saw
it in his own time, but it is just as convincing to-day about our own or
any other form of imprisonment for debt. It goes to the principle and the
root of the matter and, like many another of his best sayings, is the
knock-out blow on the subject.
Further, we have proved in our own country the beneficial effects of the
abolition of imprisonment for debt, and other countries have set us the
good example of doing away with it altogether. In Germany they have a
strict system of enforcing judgments against well-to-do debtors who seek
to cheat their creditors, a class to whom we are somewhat indulgent,
allowing many fraudulent persons to live at the expense of tradesmen by
the simple expedient of putting goods in their wife's name. But this
procedure is not available against working men, and the result is that
they have to pay their way as they go along. Dr. Schuster, an English
barrister and a Doctor of Laws of the University of Munich, explained the
German system of debt collecting to the Commission of 1908. Not only did
he make it clear that the German workman had, in the absence of
imprisonment, acquired habits of thrift that our system discourages, but
he pointed out that the insurance funds against sickness and accident, the
trades unions, the co-operative societies, and charitable relief, enabled
a German working man to tide over bad times without hanging a millstone of
debt about his neck as he has to do in this country.
In the same way in France there is no imprisonment for debt for the poor,
and so far from the French admiring our debt-collecting system in England
they think it so expensive and futile that French traders absolutely give
up all hope of recovering small debts in England and prefer to write them
off as bad. And, indeed, I have more than a suspicion that if one could
get an accurate financial history of the collection of a forty shillings'
debt in the County Court by means of imprisonment for debt, one would find
that, when Treasury fees, solicitor's costs, and creditor's time wasted
had been duly paid for, there was very little balance to credit in the
plaintiff's ledger. The more one sees of the system the more is one
convinced that it is only serviceable to those creditors who use it in a
wholesale manner to recover undesirable debts.
And though in theory I can find no serious argument against the abolition
of imprisonment for debt, yet there is one practical difficulty in
carrying it out which will have to be faced. The County Court registrars
in the small courts are unfortunately paid by fees on the number of
plaints issued. A moneylender or tally-man who cleans up his books once a
year and brings into Court a few hundred plaints automatically raises the
salary of the registrar. If this debt-collecting business is swept away,
compensation for the disturbance of these salaries that have been
calculated on this basis for many years must certainly be made. Probably
it is this real practical objection that stands between the debtor and
freedom.
I am not alone in thinking that the time is fast coming when the
inconvenience of having as the registrar of a Court a solicitor in private
practice paid by fees on the number of plaints will be so fully recognised
that the country will demand a sweeping alteration in the system. The
abolition of imprisonment for debt will give the Courts time to entertain
jurisdiction for divorce and other matters where the poor are entitled to
the same legal favour as the rich. When these reforms are made it will be
found necessary, I believe, that the registrar of each Court or group of
Courts should be a whole-time permanent official.
One other point remains to be mentioned. It is commonly said of those who
desire to abolish imprisonment for debt that they have a lower sense of
honesty than their opponents, that their views tend to encourage the man
who runs into debt and will not pay when he can. For my part I care not
how strict the law is made against dishonesty and debt resultant from
dishonesty, but let the imprisonment be imprisonment for dishonesty and
not for debt. If the debtor has acted criminally, let him be tried in a
criminal court and punished for dishonesty. In the old days a County Court
judge had powers to imprison for dishonesty, now he has only power to
imprison for debt.
It is because I believe that the abolition of imprisonment for debt will
improve the character of our citizens, as it improved the character of the
Athenian citizens more than two thousand years ago, that I have put in so
many hours overtime in the advocacy of its abolition. But whilst I would
abolish imprisonment and should like to see the English workman paying his
way like his German brother, whilst I am eager to see the poorer classes
freed from the misery that debt and extravagance brings upon them to-day,
yet no one, I hope, recognises more clearly than I do the sacred duty of a
debtor to pay an honest debt. Every penny that he can save after his first
duties of maintenance of wife and family should be devoted towards the
repayment of debts. But this is a personal obligation on a man, like
speaking the truth, or treating mankind with courtesy, and, in a word, is
only a branch of the golden rule of doing to others as you would be done
by. The breach of this obligation ought not, as it seems to me, to be
treated nowadays as more than a case of a flagrant breach of good manners,
and I would rather imprison a man who forgets to shut a railway carriage
door when he gets out on a winter night than a man who omits to pay me the
five shillings he borrowed yesterday. Both are ill-mannered fellows and
must be dealt with socially, but not, I think, by imprisonment. Debt,
except from misfortune, is really "worse form" than drunkenness. When that
is generally understood no Debtors Act will be necessary.
And the right feeling of a respectable debtor towards his creditor seems
to me stated in very apt and beautiful words by old Jeremy Taylor in one
of his "Prayers relating to Justice," in which he sets out the correct
petition to be made thus: "And next enable me to pay my duty to all my
friends, and my debts to all my creditors, that none be made miserable or
lessened in his estate by his kindness to me, or traffic with me. Forgive
me all those sins and irregular actions by which I entered into debt
further than my necessity required, or by which such necessity was brought
upon me; but let them not suffer by occasion of my sin."
And if all debtors were moved by the aspirations included in this noble
prayer, and if all creditors refused credit to poor folk unless they
believed them to be men of such a character that the ideas of the petition
were really living in their hearts, then, I think, there would be no need
of imprisonment for debt or for County Court judges either. Indeed, the
millennium would be at hand. But short of that great day, we are surely
entitled to act as though the majority of mankind preferred right action
to wrong action and not to encourage a class of debtors and creditors
whose _nexus_ is force and imprisonment rather than friendship and
goodwill. The working man should be able to say with Piers Plowman:
"Though I should die to-day, my debts are paid," and the law should help
him to that end.
CHAPTER V
WORKMEN'S COMPENSATION
Your Plea is good; but still I say, beware!
Laws are explained by Man--so have a care.
POPE: "First Satire of Second Book of Horace."
An interesting volume might be written about historical litigants and
their deeds of heroism. There was the dour Coggs who let in his friend
Bernard over the brandy cask, there was the astute Scott who never paid
Manby, the draper, for his wife's dresses, there was Wigglesworth who
built himself an everlasting name in the Hibaldstow trespass case, and the
hero of our own time, Dickson, who actually bested a railway company in
the matter of Dutch Oven, the tail-less hound--these and many others are
names enshrined in our dusty tomes of law, but if you would read them for
mere delight, has not Sir Frederick Pollock done our leading cases into
the most melodious verse.
If I were a bencher I would like to promote a pageant of these grand old
litigants in honour of their service to the English law. I think my
favourite among them all is little Priestley, the butcher's boy. You will
find his simple story in the third volume of "Meeson and Welsby." How many
know that it was at the Lincoln Summer Assizes of 1836 that the brave
butcher's boy began it, and started a train of legal thought reaching out
to the workmen's compensation system of to-day?
It was Priestley's duty to deliver meat, and one day Fowler, his master,
sent him out with such an over-load of beef and mutton that the cart broke
down and poor Priestley broke his thigh. Priestley brought an action
against his master, and the jury gave him a verdict for one hundred
pounds, but on appeal the judges would not have it, and so poor Priestley
never got it. A servant, they said, is not bound to risk his safety in the
service of his master; he may decline any service where he apprehends
injury to himself.
Lord Abinger, C.B., who presided in the Appeal Court, admitted that there
were no precedents either for or against such an action, but he was hard
put to it to explain in legal terms why the little butcher's boy, who was
certainly a brave explorer into legal hinterlands, was not to be allowed
to peg out the claim the jury had awarded him. His Lordship was driven
back to "general principles." The most learned lawyer of our day, the late
Mr. Danckwerts, once said to me when I was a very young man at the Bar and
talked glibly in consultation about the "broad grounds of truth and
justice": "If we have nothing better to rest our case on than that, God
help us in the Court of Appeal." He then proceeded to show me some cases
on the subject which my ignorance and inexperience had failed to discover.
And it was not that the great man was not a lover of truth and justice,
but that he knew that law meant, not what he and I and our client thought
to be truth and justice, but what all generations of calm thinking men
outside the dispute ought to think to be truth and justice, and that was
to be found in the decisions in similar cases which he knew as no other
lawyer ever did and about which I showed the common ignorance of my
contemporaries.
Lord Abinger, then, having no cases to guide him, played a lone hand, and
naturally played it from the point of view of the man who held the cards.
If, he said, the master be liable to the servant in an action of this kind
the principle of the liability would carry us to an alarming extent. For
instance, if a master put a servant into a damp bed or a crazy bedstead or
gave him bad meat to eat he might be liable in damages to his servant.
"The inconvenience, not to say the absurdity, of these consequences,"
afforded a sufficient argument against poor Priestley and all other
servants in like case. Priestley broke his leg and lost his case, and
legal history does not record his future career. But, though Lord Abinger
was against him, he might fairly have said in the phrase of a celebrated
and eloquent Manchester surgeon that, "This day he had lighted a candle
which would bring forth good fruit."
Several minor heroes made legal efforts to get behind this judgment, but
the judges were too many for them. It was strongly endeavoured to make
masters liable to their servants for injury caused by the negligence of a
fellow servant, but the judges declared that, when a servant enters a
service he contemplates all the ordinary risks of his work, including the
negligence of his fellow servants, and that allowance is made for this by
the master in fixing his wages. This "doctrine of common employment," as
it was called, was, of course, largely a figment of judicial imagination,
and it set back, or rather kept back, the hour of industrial reform for
more than one generation.
There never really was a law of that kind. It is what is rightly called
judge-made law. The judges said that it was "inconvenient" and "absurd"
for masters to be responsible for negligence of their servants. So, of
course, it was--to the masters and in 1836 that finished the matter. Thus
it came about that in a railway accident, if it was caused, let us say,
through the negligence of the company's signalman, every ordinary
passenger got compensation out of the company, but the engine driver, the
stoker, the guard, and their widows and orphans got nothing. Note,
however, that if the signalman had belonged to another company it would
have been quite otherwise.
In the old days when Druids sat under oak trees I daresay judge-made law
was all very well, though no doubt the personal prejudices of the Druids
were manifest in their decisions. But since the days of the Ten
Commandments it has been recognised that statute law, carefully considered
and simply expressed and written down on tables of stone or otherwise, is
a better-class article for ordering the affairs of a modern community.
No doubt the judges of 1836, being men connected with the upper middle
classes of the day, could not conceive how civilisation and social order
could exist side by side with a wicked system whereby a master had to
compensate a workman injured in his service. The thing was as
incomprehensible to the judicial mind of that date as the fifth
proposition of Euclid is to many a third-form schoolboy to-day. Some of
our judges are still in the third form in their ideas of sociology. That
is one of the dangers of judge-made law. It is bound to put the stamp of
old-fashioned class prejudice on its judgments. If the judges had been
labour leaders they would have discovered an implied contract for the
master to pay compensation with equal complacency.
The fact is that _natural justice_ is merely justice according to the
length of the judge's foot, as the common saying is. And the length of a
judicial foot will depend on the evolution of the judge. That is to say,
according as he and his ancestors have rested their feet cramped in
pinched shoes under the mahogany of the wealthy or tramped barefoot along
the highway in the freedom of poverty, so will a judge's principles of
natural justice favour the rich or the poor.
We cannot get away from the fact that our judges make a great deal of law.
The idea that a law is somewhere in existence and that the judges merely
adopt it will not, I think, hold good for a moment. It is, indeed, a legal
fiction. As a great American jurist, Professor John Chipman Gray, of
Harvard, asks: "What was the law in the time of Richard Coeur de Lion
on the liability of a telegraph company to the persons to whom a message
was sent?" The answer to this question is obvious.
When one reads from time to time of decisions of the Courts that are
upheld for a generation and finally overruled it is against the truth to
speak of a pre-existing code of laws which the judges merely administer
and expound. And the reason this is not openly acknowledged and that this
mysterious bogey of pre-existent law is worshipped in our Courts of
Justice is, as Professor Gray tells us, that there is an "unwillingness to
recognise the fact that the Courts, with the consent of the State, have
been constantly in the practice of applying in the decision of
controversies, rules which were not in existence and were therefore not
knowable by the parties when the causes of controversy occurred. It is the
unwillingness to face the certain fact that Courts are constantly making
_ex post facto_ law." This is why we maintain the fiction of the
continuous pre-existence of law.
The fear among those in authority seems to be that it would be unwise to
openly recognise the real extent of the judicial power, as it would be
unpopular and widely rebelled against, and that under the soothing fiction
of the existence of an imaginary body of law and by the constant humble
assertion of the judges, that they are not there to make laws, but only to
administer them, the man in the street is deceived for his own good. For
myself I have grave doubts whether this juggling with facts is to
anybody's benefit. If it were recognised that in giving decisions at
common law, and also in the interpretation of statutes, judges were not
only declarers of existing law but makers of new law, then it would be
possible to discuss and perhaps control or direct the law-making power of
latter-day judges which from time to time manifests itself in unbalanced
social judgments.
When the telephone was invented by Alexander Graham Bell, the
Postmaster-General of the day claimed that it was a species of telegraph
within the meaning of the Telegraph Act, 1869. Scientifically, of course,
it was no such thing. Economically and in the interests of the community
it was essential that the telephone should not be handed over to a public
department predetermined not to give it a fair chance of development. Lord
Kelvin and others pointed out what was the right policy in the matter,
and, if the affair had gone to a parliamentary commission, his words would
have had weight and a Telephone Development Act might have brought about
excellent results. In that case the future of the telephone would have
been settled by parliamentary law.
It was, in fact, settled by Mr. Justice Stephen in 1880, who declared that
the telephone was a telegraph within the meaning of the Telegraph Acts,
1863, 1869, although the telephone was not invented or contemplated in
1869. In this way its proper development in this country was arrested for
more than a generation. This is a remarkable instance of judge-made law.
Why should an individual citizen just as unversed in science and business
as the man in the street have the right to enact what should or should
not be done with an entirely new invention which was not in existence when
the statute which he pretends to apply was enacted. If the judges decided
that an aeroplane plying for hire was a hackney carriage it would in law
remain liable to all the statutory hackneydom of carriages until
Parliament otherwise ordained. Is it not becoming time when judges,
instead of making new and often reckless law, should be satisfied with
declaring that in the case before them there is no law to their knowledge,
and it is for the Legislature to consider and enact some. If this had been
Mr. Justice Stephen's decision in _The Attorney-General v. The Edison
Telephone Co. of London, Ltd._, how much better for all of us to-day!
Again, in the Workmen's Compensation Act, Parliament, it is known,
intended and desired to express many things which the judicial
interpretations of the Act have altered and amended out of all
recognition. It is scarcely true that these interpretations are all of
them due to the verbal inaccuracy of the parliamentary draftsman, because
one often finds the Court of Appeal taking one view of the meaning of the
words and the House of Lords another. The real parliamentary object of the
Act is now very difficult to understand and ascertain from the language
used in the judgments interpreting it. If law were really a science and
the interpretations of statutes by judges merely an ascertaining of
parliamentary intention, one would not expect to find such different
interpretations put upon the same words and the parliamentary intention so
openly ignored. In America grave popular discontent has arisen over the
law-making propensities of judges and their bold refusal to carry out the
intentions of the Legislature. We have no such widespread feeling in this
country, nor are we likely to have, but, all the same, if we were to
recognise the law-making power of our judges and openly discuss it and
endeavour to define and limit it, there would be less fear in the future
of a rupture between the people and the judges when futurist laws of
far-reaching social reform come to be administered by the Courts. The
lamentable failure of consistent interpretations of the Compensation Acts
is not calculated to raise the judiciary in the affections and respect of
the working classes.
This matter is really one of grave importance, for though in a sense and
up to a point, whatever a judge decrees is for the time the law--that time
may only be short. In the end the law must express the wills of those who
rule society. Professor Vinogradoff well says, in that excellent little
treatise "Common Sense in Law," we ought to "realise that law has to be
considered not merely from the point of view of its enforcement by the
Courts: it depends ultimately on _recognition_." When, then, we openly
confess that our judges are making new law every day we shall have to
impress on them--especially in social matters--that the new law they make
should be, like new parliamentary law, founded on the best aspirations of
modern hopes and thoughts of the future life of our people, rather than on
the musty creeds and traditions in which the individual human beings who
are judges have unfortunately for the most part been educated. Judge-made
law, like any other law, can only be of value to the community by popular
recognition of its wisdom. The more the judges can keep to the real
administration and interpretation of laws already existing the better for
everyone, but new points of difference and a new social order of things
naturally bring before the judges cases which can only be decided by their
making new laws. When it is freely acknowledged that this is so, not only
the community but the judges themselves will be called upon to consider
and decide the ideals and principles by which they ought to be actuated in
their capacity of lawgivers.
The law that was laid down to meet the case of the butcher and his boy
became the law under which every railway servant, every miner, every
mechanic, every navvy--the huge industrial army working under impersonal
boards and committees of limited liability companies--risked his life in
his daily work at his own expense. From 1836 to 1880 men were killed and
injured by the thousands in industrial work and there were no pensions for
the widows and orphans, no compensation for the wounded. Moreover, such a
system discouraged employers from spending money on safety devices. No
doubt many good and wise employers did a great deal to safeguard their
men; equally no doubt, servants, being but human, were often injured and
killed by their own carelessness and recklessness. The deplorable part of
it was that the law had taken up an attitude against the poor in this
matter and, as things stood, it was to no company's interest to spend
their money and decrease their dividends by safeguarding the lives and
limbs of their servants. This is still so in America, where on the
railroads one man is killed for every two hundred and five employed and
one is injured in every nine. "War is safe compared to railroading in this
country," is the comment of Mr. Gilbert Roe, the American jurist.
Of course, at all times much was done by private charity of employers and
others to help those who fell in the industrial fight.
In great colliery, shipping, or railway disasters subscriptions were made,
no doubt, just as they are to-day, but the little obscure cases that mount
up to many thousands in the annual statistics of the industrial killed and
wounded were left to chance and charity.
The Employers' Liability Act of 1880 gave certain workmen limited rights
of action in special cases. It was a prudent conservative measure brought
in by a Liberal Government, and, of course, it was predicted that it would
ruin every industry in the country. It must have cost industry a big bill
in lawyer's fees. Every case under the Act was fiercely litigated, and
might go from the County Court through two Courts of Appeal to the House
of Lords.
I do not like to write ill of the poor statute. It is not actually dead,
but moribund, and in the years gone by, when we were both young fellows I
had many a good outing at the old fellow's expense, and he did me very
well indeed. Therefore, of the Employers' Liability Act of 1880 I will say
no more than the man in the gallery did about the bride when the minister
asked, "Who giveth this woman away?" "I could, guv'nor, but I ain't going
to."
But when we come to the Workmen's Compensation Acts that is another matter
altogether. The County Court judges have never received a penny for the
extra work thrust on them by these Acts, and therefore there can be no
indelicacy or indiscretion in speaking one's thoughts plainly about the
system.
And of the idea, and to a great extent of the achievement, of Mr.
Chamberlain's scheme--for to him must the praise and honour be given for
bringing it about--one cannot speak too highly. The theory at the bottom
of it is exactly the opposite of the theory at the bottom of the judges'
decision against poor Priestley. It is best put in these memorable words
of Mr. Asquith:
"_When a person, on his own responsibility and for his own profit, sets in
motion agencies which create risks for others, he ought to be civilly
responsible for his own acts._"
That is the Magna Charta of workmen's compensation. It cannot be better
stated. And the promises and intentions of the new Act were splendid. For
Sir Matthew White Ridley said that the Act would prevent uncertainty, and
the parties would know what their rights were, and that it provided a
simple and inexpensive remedy and would prevent litigation. Mr.
Chamberlain pointed out that up to then, in 1897, only 12 per cent. of
accidents were dealt with, but that he hoped that now the other 88 per
cent. were to be brought in.
His plan was so simple. An injured man in certain trades had only to ask
for compensation, and receive it according to a fixed standard. State-paid
doctors and arbitrators were to settle the details of the man's injuries
and the amount to be paid to him. In his own words, "We wish to avoid
bringing in again under another name the old principle of contributory
negligence." A man was to receive compensation when injured in the
service, even if he himself had been negligent.
I often think if Mr. Chamberlain had had health and strength to see the
workmen's compensation business properly through he would have dealt with
the lawyers who mangled his excellent scheme much as Theseus did with
Procrustes when he met him on the banks of the Cephisus. Procrustes, you
will remember, was a robber of Attica with a quaint sense of humour and a
bedstead. If a traveller asked his hospitality he invited him to the bed,
to which he tied him. If his legs were too long he cut them off, and if
his legs were too short he pulled them out to the right length. Procrustes
had the calm judicial mind of the Court of Appeal, and within his narrow
limits knew exactly what he wanted to do and how to do it. But it was
rough on the traveller.
And it is rough on a humane, simple, wise scheme for the benefit of the
poor on leaving the hands of that great reformer and statesman, Mr.
Chamberlain, to find that it is being martyred by the Procrustes of the
law so that it may fit his narrow bed of justice. I think some of the
decisions of the Court of Appeal would have been too many for Mr.
Chamberlain, and he would have severed their connection with the workmen's
compensation business as Theseus severed Procrustes' connection with the
bedstead business.
It is certainly not putting it too strongly to say that the judicial body,
speaking generally, did not love the Workmen's Compensation Act. The idea
at the base of it that a man should compensate another outside the scope
of contract or wrong was to them out of harmony with the English law.
There never was a more honest or single-hearted judge than A. L. Smith,
who was Master of the Rolls when the earliest cases came up for decision
in the Court of Appeal. The social creed of "A. L." was something between
that of the Church catechism and the _Sporting Times_. He was beloved by
rich and poor. His ideal world was one where a good-natured aristocracy
would confer kindnesses on a well-mannered democracy, who should receive
them in a jovial and grateful spirit. There is no doubt that he
endeavoured, as did all the judges of the Court of Appeal, to rightly
interpret its provisions; there is equally no doubt that the spirit of
many of the interpretations placed upon the draftman's words did not give
effect to the intentions of Mr. Chamberlain and those who had passed the
Act. This one can only trace to the habits of mind and social creeds of
judges like "A. L." who were wholly out of touch with the beliefs and
hopes of industrial democracy. The Act of Parliament ought not to have
been sent to the Court of Appeal at all. It was not founded on any legal
principle, it was an insurance scheme that wanted business men to work
it, and, as Mr. Chamberlain had foreseen, lawyers and litigation could in
no way assist its working.
It cannot be gainsaid that the legal history of the Workmen's Compensation
Act is not a thing for lawyers to boast about. No one has a greater
respect for the Court of Appeal--and, indeed, for all my spiritual, legal,
and worldly pastors and masters--than I have. Humility towards those who
are called to any honour amongst us is my foible. I admit I have but a
poor stomach for law and that I often find the learned judgments of Appeal
Courts a little indigestible, but I remember the Irishman sampling the
twopenny racecourse pies, and piously murmur to myself, "Glory be to God,
but they're dam weighty." No one would deny the learning, subtlety and
weight of the judgments in the Court of Appeal on the Workmen's
Compensation Act, but, speaking as a common arbitrator who has to work the
Act at first hand and make it human food for shattered men and widows and
orphans, they have not tended to make my task easier, they have not
simplified and assisted the scheme as a compensation scheme, and they have
not been in harmony with the spoken intentions of the author of the
scheme.
This, I think, to be due, in the first place, no doubt to the
imperfections of the Act, in the second, to the fact that the appeals come
before learned judges who have never administered the Act in cases of
first instance and have had no practical experience of its working, and,
in the third place, to the fact that to much of the higher judicial
intellect the theory of workmen's compensation is in itself unscientific,
and therefore repugnant.
Nearly all the cases, and there are, I regret to say, many, where the
Court of Appeal has overruled the County Court, and the County Court
judgment has ultimately been restored by the House of Lords, the error has
been in the Court of Appeal striving to find a reason to hinder the
payment of compensation, rather than searching for the principle which
brought an admitted injury within the scheme that Parliament has made to
compensate the injured. After all, the Act was one for the compensation of
workmen, and every case of injury that is found not to be provided for is
a blot on the scheme.
The expense of all these appeals, is of course, a terrible burden, and to
a workman without a trade union behind him would be impossible. Great
confusion has been caused by having to work certain matters for
considerable periods under decisions of the Court of Appeal that have
afterwards had to be dealt with differently by decisions in the House of
Lords. Very likely if there were a further appeal to a House of Archangels
the Court of Appeal would be upheld. But to the injured man in the works
and the arbitrator waiting to award him his few shillings a week what
could be more pitiable and exasperating than the delay and expense that
the present method of working the Act entails? One solid reason why the
appeals in workmen's compensation cases should be removed from the Court
of Appeal is that they cannot be heard within a reasonable time. The _Law
Journal_ of June 13th, 1914, states that there are seventy-three workmen
compensation appeals waiting to be heard, of which no less than ten were
entered in 1913. It would be interesting to know how the appellants manage
in the interim.
The Act itself was difficult enough no doubt to make into a good working
scheme by those who desired to do it; the hundredweights of handsomely
published and learnedly edited reported decisions as to what it really
means have made it hopelessly impossible to comprehend and increasingly
difficult to administer.
To sum up the position of the Act to-day, with its myriad encircling
decided cases, one can only say, with the immortal Sergeant Arabin, that
it "bristles with pitfalls as an egg is full of meat."
When you have an Act of Parliament that in at least a dozen reported cases
is solemnly decided to mean _x_ in the Court of Appeal and _y_ in the
House of Lords, _x_ representing "against the workman" and _y_ "for the
workman," what does the man in the street think about it? And yet I cannot
believe there is so much difficulty about construing the Act if the Courts
would all steer by those excellent sailing directions of Lord Halsbury and
Lord Davey.
Lord Halsbury said:
"The broad proposition, of course, was that the Legislature intended that
there should be compensation given to every workman in certain trades when
an injury happened to him in the course of his employment."
Lord Davey said:
"I entirely agree with what has been said by my noble and learned friend
on the Woolsack that you ought to construe this Act so as, as far as
possible, to give effect to the primary provisions of it."
Now the primary provision of the Act was to compensate workmen for
injuries, not to leave them uncompensated, and to do the business promptly
and simply. We want more of the spirit of the Act and less of the letter,
and a great deal fewer forms and orders and rules. In a word, more
business and less procedure. As a dear old lady said to me when, after
several efforts to set her affairs right, the registrar and myself had at
last got her to fill up the papers necessary, as things are now, to get
her case through: "I tell you candidly, Judge, all this filling up of
papers and signing things has been more worry to me than the loss of my
old man."
And I'm sure she loved her old man--so what must she have thought of us
and our Act of Parliament?
There may be some who think that it is almost indelicate to discuss such a
subject as the possible fallibility of the higher judiciary. I agree that
it is a subject that can only be treated by one imbued with that reverence
for existing institutions that so happily results from a sane middle-class
education. Moreover, we cannot shut our ears to the sound of much
discussion about what is called judicial bias by the man in the street. In
America the sounds are louder and clearer than they are in England, and
the problem is so much the simpler to understand--especially for the
onlooker. There are great lessons for us to study if we would avoid the
troubles which the American judges have been assiduously looking for and
are now successfully finding. Two interesting books written from different
standpoints, Gilbert E. Roe's "Our Judicial Oligarchy," 1912, and
Frederick N. Judson's "The Judiciary and the People," 1913, show the
eagerness with which lawyers who have human interests outside the daily
problems of their profession are discussing the great questions of the law
and the poor.
The judiciary in America is differently chosen from that in this country
and in some ways it has greater powers. Its instinct and bias are similar
to those of our own judges, but it has not been so successful in
instilling into the minds of the citizens a belief in its infallible
honesty of purpose. There is no doubt that in America there is a growing
distrust of the integrity of the Courts and a feeling that the judges in
their sympathies and views are on the side of wealth and against the
working man. Much of this arises, no doubt, from circumstances which do
not obtain here. But that the middle-class instinct exists on the American
bench even more strongly than it does here can be seen in their history of
workmen's compensation which to an English lawyer is strange and confused
reading.
The common law of America in this matter is the same as the common law of
England. The failure of Priestley, the Lincoln butcher boy, settled the
law of America as completely as it did the law of this country. And though
different Legislatures have endeavoured in different ways to remedy the
grievances of employers, the judges have made this not only difficult, but
in some cases impossible. In 1906 Congress, with the approval of the
President, passed a carefully and well-considered "Employers' Liability
Act" relating to common carriers in the district of Columbia. When it came
before the Supreme Court of the United States this law was held to be
unconstitutional by five judges as against four. To my mind there can be
no comparison between the influence and common-sense of the judgments. The
counting of heads was against the statute, but the expression of the
contents of the heads showed a resultant force of brain power in its
favour. The chief argument of the majority was that some of the clauses of
the statute were "novel and even shocking," just as Lord Abinger found
poor Priestley's contention inconvenient and absurd. Later on, in 1911,
the Court of Appeal found the workmen's compensation legislation of New
York to be unconstitutional, because it placed a "burden upon the employer
without any compensatory benefit." In America the judges have been able,
for reasons that would certainly have appealed to the late Master of the
Rolls and many of his colleagues, to cancel popular legislation. This has
roused a direct conflict in America on the subject of the law and the
poor, and there is a growing feeling that the Courts are not discharging
their duty in relation to social and industrial justice. The recall of
decisions and the recall of judges are popular cries, and there is much
public discussion of such themes.
These things are of interest to us because our laws and our poor come
from the same stock and, though we pride ourselves, and I think rightly,
on the superiority of our legal machine, yet it is not so perfect that we
may not learn something from the troubles and difficulties of our
neighbours. If the working class should, even on false premises, come to a
conclusion that they could not find justice in our Courts owing to
judicial social myopia, it would be a sad day for everybody. For my part,
though I quite recognise that there was a bias in the late Lord Abinger,
for instance, against poor Priestley's way of looking at things, I do not
think that anyone believed then or believes now that he gave his judgment
in any unrighteous class spirit adversely to the rights of Priestley and
mankind. On the contrary, I think he did his best. He expressed what he
and his fellows believed to be the law.
This idea of "bias" in judges is well worth a little consideration. We
have not the same problem that America has about our judiciary and, let us
hope, we never may have, but no one who knows the working man can fail to
have observed that he has been, as he would say, colourably--I modify the
adverb--"colourably fed up" with several recent judicial decisions.
It has certainly become too common a thing in England to grumble about our
judges, and to say--especially when the costs are taxed and the bill is
delivered--that the judge was biassed. But let us remember that it is our
birthright to grumble. To grumble, as Cox pointed out to Mrs. Bouncer, is
a verb neuter meaning to complain without a cause. In England we grumble
at all our best beloved--our wife, our children, our weather, our
constitution, the three-year-old that fails to carry our money to the
winning-post, and the stewards who disqualify him when he does. And when
we grumble at our judges and say there is bias on the bench it is only our
little way.
For what is "bias"? I have never been able to make out why the word should
have a sinister meaning. Bias--as all good bowlers know--is that
mysterious weight within a good "wood" or bowl whereby the skilful is
enabled to direct it by an arc-like course towards adjacency of "the
mark," which is the historic name of the jack. In Lancashire, where the
game of bowls is played, as it should be, upon a crown green--and not, as
in the South, on a tame, flat rink--the bias and the use of the bias make
the glory of the green. By means of bias scientifically used we may reach
"the mark" by the circuitous "round peg," or play straight up against "the
watershed," as I once heard a geologist among bowlers describe the slope
of the green.
What grave problems have to be judicially decided on the green as to the
use of "thumb" or "finger" bias before the "wood" is delivered! What
anxiety is pictured on the face of the bowler! What contortions of his
body are involuntarily indulged in as the bowl speeds on its way and
does--or more often does not--carry out the intentions of the bowler!
And therein, I think, lies the secret of the evil meaning we have given to
the word "bias." We see our "wood" careering across the green and hear it
fall with a dull thud on the path beyond, and instead of blaming ourselves
we blame the bias. Thus, owing to the alarming prevalence of duffers on
the green and in the greater world surrounding it, the word "bias" has
come to be regarded as a tendency that leads astray rather than a tendency
that keeps straight and is up to "the mark."
And when I am asked whether there is bias on the English bench, I
cheerfully reply that I hope and believe there is. I have met with
unbiassed bowls, and very poor "woods" they were. I have met with men
almost devoid of bias, and I never found that they were continuously up to
the mark. Bias is as essential as character to both "woods" and men. As
far as I remember I have never met a judge without "bias" and seldom seen
one whose bias was not fairly under control. We want bias on the bench
because we like to feel that the men who decide our disputes are not mere
automatic legal slot machines, but human beings, with likes and dislikes
similar to ours, trained to hear and determine our disputes and honestly
endeavouring to decide the cases without fear or favour. When judicial
bias carries the judgment beyond "the mark" we grieve not that the bias is
there but that it has been injudiciously used.
From the true bowler's point of view there is only one bias, a bias
towards things, but in our vulgar misuse of language we speak of a bias
against things. And if that is to be allowed no one would grudge a poor
working judge his right to a bias against fraud and dishonesty, greed
and oppression. Such a bias should indeed be instinct in him in the same
way as a golfer has a bias against bunkers, a terrier against rats, and a
mongoose against snakes. But even a good bias requires strict and cunning
control. I remember a very excellent and sage judge--in most matters a
cool fountain of deliberate justice--whose bias towards purity and a high
ideal of man's conduct towards woman was so little under control that in
cases, and especially criminal cases relating to these affairs, it was
very difficult for him to conduct the case with justice to the accused.
His bias against the sin over-rode his judgment of the crime.
The same bias is more often found in juries. I remember a case in which my
father, Serjeant Parry, defended a man named Smethurst, charged with the
murder of his wife. He was admittedly guilty of bigamy, and so incensed
were the jury with his misconduct that their bias carried them right by
the mark of the medical testimony and landed them in the ditch of an
unjust verdict of murder. The case was taken up by John Bright, one whose
bias against all evil was as strong as any man's. The criminal was
ultimately punished only for the crime he had committed. No one will
contend that a bias against immorality is not a good bias and a good asset
in the character of a judge and a man. But the best bias in the world will
not aid you in attaining "the mark" unless it is directed by body and
brain working together in harmony.
And if it be asked if there are judges on the bench who are biassed
towards or against capital or labour, railway companies, motor-buses,
piano organs, Scotch drapers, moneylenders or other products of modern
life, I must answer in all honesty that this is very probably the case. A
fact that seems to be lost sight of in this insistence on the immaculate
judge is that, after all, he is like other human beings, a forked radish
with a fantastically carved head quaintly decorated by a horse-hair wig
generously paid for by himself out of his slender salary. He is just as
much the product of the age as one of yourselves. He has toddled about in
the same nursery, learned in the same school, played at the same
university and lived in the same society as the rest of the middle
classes. Why should you expect in him a super-instinct towards futurist
sociology?
In the old days when everyone believed in witchcraft the judges believed
in witchcraft. Chief Justice Hale solemnly laid it down as law that there
must be such things as witches since there were laws made against witches,
and it was not conceivable that laws should be made against that which did
not exist. It was not, indeed, until the time of George II. that it ceased
to be an offence to endeavour to raise the Devil by magic words and oblige
him to execute your commands. Nowadays even the Devil himself is in danger
of disestablishment, though my conservative views would lead me to
maintain that he is still entitled to judicial notice, and I am inclined
to the opinion that he is not yet surplusage in an indictment for perjury.
In every age your judge will be tinged with the prejudices of his time
and his class, and I cannot see how you can expect to grow middle-class
judges in hot-beds of middle-class prejudices without the natural
formation of a certain amount of middle-class bias in the thickness of
their middle-class wood.
Nor do I think among Englishmen anyone resents such bias as your judges
display in their everyday life. Mr. Justice Grantham, like "A. L.," was
undoubtedly a man of strong conservative bias and showed it openly enough
upon the bench, but he was adored on a working-class circuit, and no man
was better beloved by all who practised or appeared before him, and no
judge strove more earnestly to do justice. The fact is, bias is recognised
among Englishmen as one of the sporting attributes of man and is as
necessary to the instruments with which we play the game of life as to the
"woods" in our old-world game upon the green.
If there is any bias on the bench that is popularly and justly disliked it
is a bias towards formalism and technicalities. Our law of old got a bad
name for that, and in quiet places our reputation still sticks to us.
There are still men and women in the English country-side who think there
is some sort of disgrace attached to a law court. In the quiet County
Courts of Kent and Sussex a defendant often complains in an aggrieved tone
at being brought to a "place of this kind." It argues to his mind a want
of delicacy in the plaintiff, and he states his case without the least
hope that it will be decided on the merits. I remember an amusing
expression of this feeling. A defendant, a cheery, round, pippin-faced
jobmaster with a treble voice was sued by a farmer for keep of his horses
in the farmers' field for several week-ends.
"Well, I'll tell you about it," he piped diffidently in answer to my
request for information, "for I might as well now I'm here. It was this
way. I met Sandy in Crown Lane. I always call him Sandy--you must excuse
me if I'm wrong, I've never been in a place like this before--and Sandy
says to me, 'Jim, why don't you bring your 'orses down to my field for
Sunday like you used to do last year?' Well, I brought my 'orses down on
Sunday and I did that for some two or three months and then I took them
away, and I meets Sandy and he says, 'Jim, why have you taken your 'orses
away?' and I says, 'Because there ain't no food on your field for my
'orses.' He says to me, 'There's more food on my field than your 'orses is
used to.' I says, 'Sandy, you know there's no feed in your field for my
'orses.' He says to me, 'If there ain't no feed in my field for your
'orses there's plenty of recreation for them.' 'Recreation?' I says; 'my
'orses don't want no recreation, they gets recreation in the bus through
the week.' With that Sandy went his way and we never exchanged another
word for three year, and now he brings me to this 'ere place for sixteen
shillings and I've never been in a place like this before."
I explained to the defendant that the County Court was really a place
intended for an affair of this nature and thoroughly equipped to see it
through, but he was not satisfied.
"What right has he to bring me here?" he complained. "I never promised to
pay him anything."
"Was there no agreement between you?" I asked.
"Well, we did agree about one thing."
"And what was that?" I asked hopefully.
"We agreed that if we couldn't settle what I ought to pay," he replied,
eyeing me with doubt and disapprobation, "that we should leave it to a
respectable man."
Now what he really wanted was a judge full of bucolic bias and well
acquainted with vaccine and equine learning. It was only I fancy in a
veterinary sense that he considered that I was not respectable.
And nowadays when we open the Courts to new applicants, and turn over
great schemes of workmen's compensation to judges to deal with, we want
judges to work them who are in touch with the needs and lives of the
working class, not necessarily folk who want to exalt the poor on to
unreal pedestals and clothe them with impossible virtues, but people who
know how near their faults and virtues are to those of the rest of
mankind.
And when we find American judges deciding that no system of workmen's
compensation is to be allowed to become law, and when we note that the
most learned judges of our own Appeal Courts differ constantly as to the
meaning of the words of our own scheme, thereby causing delay, confusion
and expense, it raises a question in one's mind as to whether some far
less exalted Court of Appeal--say, three County Court judges who have to
try these cases face to face with the men and women who are interested in
their decision--would not better meet the wants of the community in
carrying out the scheme and come nearer to the ideal of "the respectable
man." A bishop has once been a curate, but a Lord Justice of Appeal has
never been a County Court judge. The Workmen's Compensation Act is a
practical business machine of a complicated character, and it is scarcely
a sensible thing that the men who have to keep it going should work under
the theoretical direction of men who have never seen it working.
And there is another reason why the appeals in these cases should be
removed from the Court of Appeal, and that is a very practical one--the
Court is over-crowded and has no time to try them. Even now as I write
there are cases, many of them perhaps merely questions of the payment of a
few shillings a week, which have been waiting for many months to be
reached. From the point of view of everyone concerned, except the lawyer,
there is no health in this litigation. In so far as the administration of
the Workmen's Compensation Act has been a success it has been because
insurance companies and employers and trade unions and workmen have either
kept out of Court altogether or, when they have got there, have assisted
the registrars and judges of the County Court to work the thing on
business lines and have resisted in a large measure the temptation in the
uncertainty of the decisions to speculative litigation. There is still
enough English common-sense left among us to muddle through most things,
but the Workmen's Compensation Act, as interpreted in the Court of Appeal,
has tried it fairly high.
CHAPTER VI
BANKRUPTCY
"In a lofty room, ill lighted and worse ventilated, situate in
Portugal Street, Lincoln's Inn Fields, there sit nearly the whole year
round, one, two, three or four gentlemen in wigs, as the case may be,
with little writing desks before them, constructed after the fashion
of those used by the judges of the land, barring the French polish.
There is a box of barristers on their right hand; there is an
enclosure of insolvent debtors on their left; and there is an inclined
plane of most especially dirty faces in their front. These gentlemen
are the Commissioners of the Insolvent Court, and the place in which
they sit is the Insolvent Court itself."
CHARLES DICKENS: "Pickwick." Chap. XLIII.
A bankrupt is not a person who breaks the bank, as is popularly supposed.
On the contrary, he is, or ought to be, by his derivation a person whose
bank is broken by others. A learned professor tells me that the
Florentines of old had some sort of ceremony in which they marched to
their insolvent neighbour's office and broke up his bank, or bench, or
money table to show the world that he was no longer commercially sound.
Until recently in English law bankruptcy was merely a trader's remedy
designed to protect an unfortunate business man from life-long
imprisonment for debt resulting from unfortunate business ventures.
Latterly the privilege of bankruptcy has been extended to every citizen
that has a debt of fifty pounds and ten pounds to pay the fees necessary
to filing his petition.
But, in order to become insolvent, it is a condition precedent that at
some time or another one should have been solvent. And one difficulty
about applying any form of bankruptcy laws to the poor is that they are
too often born insolvent, live insolvent, and die insolvent. There must be
many fellow citizens in this country of ours who never knew what it was
for twelve months of their life to have a living wage and be out of debt.
As long as we have imprisonment for debt credit of some kind and on some
terms ruinous or otherwise is always obtainable. At the present,
bankruptcy is almost regarded as a sign of grace, a condition of
honourable martyrdom into which the careless and good-natured ones of the
world find themselves after a short struggle in the slough of solvency. To
the rich it is a very present help in time of trouble, but the poor, never
having been sufficiently solvent, can never make use of its aid.
When the worker has a living wage guaranteed him by the State it will be
necessary to make him a new bankruptcy law so that the living wage cannot
be attached and converted to the use of the Shylocks of this world. The
law protects the infant and the idiot from the results of their own
foolishness, and we shall find it advisable in the future to extend
similar protection to the grown-up idiots and infants who are all too
prevalent in the world. Antonio was a normal business man, but he was no
match for Shylock, and, though no lawyer can approve of the way in which
the Courts treated Shylock, the real lesson of the story is that laws are
necessary to protect Antonio, the fool, from Shylock, the knave.
In order, then, that the full blessings of bankruptcy may be made
available to the poor, we must certainly tackle the problem of the living
wage, which to my mind is the most urgent social question of our time. So
many things seem to hang upon it. Rent, taxation, education, physical and
moral improvement, eugenics, all the social discussions of the time, land
you back on the question of the living wage. Sometimes, I think, we are on
the eve of a new era when every capable honest citizen will have the same
right to a living wage that he now has to free board and lodging and stone
breaking in the workhouse. I would rather have a legal right to a living
wage than a vote, unless I was clear that I could use the latter to obtain
the former and many better things to boot.
As a matter of dull, dry, literary history all the prophets and singers
and poets, from King David, Isaiah and Jeremiah down to Carlyle, Kingsley,
Ruskin, Dickens and Tom Hood, have said or sung the praises of the living
wage. There are many who regard Jeremiah as a kind of gloomy dean, but for
my part I find him most encouraging. When he says: "Woe unto him that
buildeth his house by unrighteousness and his chambers by wrong; that
useth his neighbour's service without wages and giveth him not for his
work," I think that he is absolutely right on the spot. I cannot believe
that it was his view that woe would providentially descend upon the man
who paid sweating wages and that it would come in the shape of lions and
bears or lightning and earthquakes; on the contrary, I read it, that, in
Jeremiah's view, it was the duty of citizens to see that their fellows did
not behave like this. The prophet intended to tell us that our first duty
was to persuade our fellow citizens employing labour to give their workmen
a living wage, but if we could not achieve this by reasoning and exhorting
them, then it was our duty to give such anti-social churls statutory woe,
just as we mete out statutory woe to the naughty ones who get drunk and
beat their wives, and, indeed, for the same social reasons.
David and all his biblical backers were as eager as Mr. Philip Snowden and
his Socialist friends to promote the living wage, and, as they put it, to
"deliver the poor from him that is too strong for him." That, in a phrase,
is the modern problem of the living wage. The trust, the combine, the
limited company, the corporation or Government office are bound in the
nature of things to become the spoilers of the poor and needy unless there
is some power delegated by the State to some judicial authority to
"deliver the poor from him that is too strong for him."
But it is not sufficient to cite poetry and Psalms and the "Song of the
Shirt"--for then your Thomas Gradgrind comes along--a man of realities,
sir, a man of facts and calculations, a man who proceeds upon the
principle that two and two are four and nothing over, and who is not going
to be talked into allowing for anything over--Thomas Gradgrind shakes his
square finger at you and says: "How are you going to do it?" And I agree
that Gradgrind is deserving an answer. I do not say we must wait until we
convince him, for Gradgrinds are obstinate, stubborn fellows, but we must
satisfy the majority that we have a fair answer to his objections and a
practical programme to propose. The problem cannot be shirked for ever.
Even in the prophet Carlyle's day it was a matter in regard to which "if
something be not done something will do itself one day and in a fashion
that will please nobody."
And shortly the way in which it will come about is by voluntary
conciliation, the erection of joint boards of employers and workmen with a
right of appeal to a business legal tribunal--something akin to the
Railway Commission--which shall have power to make and enforce a decree to
the worker of at least so much of his fair share of an industry as shall
amount to a living wage. I can see nothing revolutionary in this proposal.
It really only follows out the trend of modern legislation. If a man has a
smoking chimney, or pollutes a river, or goes about in public with an
infectious disease, we fine or imprison him for his anti-social
misconduct. Surely a man who pursues an industry that does not make a
living wage for the workers in it is equally an enemy of the people, to be
dealt with as such by the law! As Mr. Justice Gordon laid it down in the
Australian Labour Courts: "If any particular industry cannot keep going
and pay its workpeople a living wage it must be shut up." Some day that
will be the law of England. No one can deny the common sense of it.
A very encouraging sign of the times is that both sides are discovering
the uselessness of strikes. In Mr. Snowden's frank words, "a strike never
did much substantial gain to the strikers." It is not only that the strike
or lock-out is a crime against helpless women and children, that it wastes
the substance and savings of employers and employed and embitters their
relations for a generation--all that we knew before; the new and
comforting message is that the strike does not "get there," it does not
succeed, and therefore, as Mr. Snowden says, "just as war between nations
cannot be defended either ethically or economically, so labour disputes
are indefensible."
And there are other indications that conciliation and agreement in labour
matters are to have a fair trial. Already in the railway world an
interesting experiment has been made. I have seen enough of it in the
working to know that it is not such a spavined animal as some of our
political jockeys would have us believe. When the railway conciliation
boards were set up the employers and workmen, where it was possible,
agreed upon an independent chairman to sit with them in case there was a
deadlock. Several boards of different companies invited me to undertake
this honourable position. I need hardly say that I fancied myself not a
little at receiving such flattering invitations, and meeting a friend, who
was an eminent railway solicitor, I told him the news--not, I suspect,
without a note of pardonable triumph in the phrasing.
"What!" he cried; "do you mean to say that the companies and the men have
agreed upon you as chairman?"
"That is so," I replied, with dignity, being a little hurt at his surprise
and astonishment.
"Well, I'm----. However you'll never have anything to do," he added with a
grunt of satisfaction.
"And why not?" I asked.
"Because," he replied, with great deliberation, "if they could agree about
you they could agree about anything."
I thanked him for the compliment, but, analysing the saying since, I am
not so sure that the commendation I accepted was really proffered to me.
Be that as it may, it has turned out to be true. On the few occasions on
which my services were required, I have found that things were capable of
adjustment and settlement owing to the excellent good feeling on each side
and the real endeavour made by everyone to try and understand the other's
point of view. This is where the independent chairman is of real service.
In explaining to his virgin mind the difficulties of the case, every point
in it has to be discussed and explained anew, and in this way the weaker
positions of the argument are made clearer to those who are defending
them. Thus it becomes easier to give way about some matter of detail, and
concession breeds concession.
Without making too much of my own small experience, it bears out my
theoretical expectation, and I am satisfied that a conciliatory court for
trade disputes is a live business proposition, calculated to save
employers much unnecessary woe, and that if Jeremiah had thought of it, he
would have proposed to set one up as a practical step towards the living
wage.
Until, then, we have established a living wage for the worker, the
question of his bankruptcy is in a large measure academic. At present
bankruptcy, like divorce, is rightly regarded as a luxury for the
well-to-do. I know that to some minds the word "bankruptcy" connotes
poverty, but if you look into the facts and history of the matter, you
will find that, though bankruptcy may on occasion lead to poverty, a poor
man never does, or can, become a bankrupt.
People fail to the tune of five or six million pounds a year, but when you
analyse the list of the insolvent you will not find many poor folk among
them. There are lords and gentlemen, solicitors and stockbrokers,
merchants and manufacturers, builders and farmers, and butchers, bakers,
and candlestick makers.
But the nearest you will find to poor people are lodging-house keepers and
coffee-house and fried fish shop proprietors. These are precarious trades,
and the working man, being a good sportsman, likes to have a gamble in
them with his savings. In this way he joins the aristocracy, and becomes
an eligible bankrupt. But the labourer and artisan, the real working men,
have no more chance of bankruptcy than they have of election to the
Athenæum or the Carlton.
Bankruptcy is a legal status jealously guarded by the caste to which it
belongs. The poor man reads in the paper of builders and merchants failing
for their thousands, of well-paid accountants carefully investigating the
history of their financial fall; he puts his head into the Registrar's
Court and hears an amiable official receiver sympathetically tracing the
career of the well-groomed bankrupt in front of him; he sees the judge
present the unhappy fellow with a clean slate, from which all his debts
are wiped away, and hears him announce to the unfortunate insolvent the
date upon which the law will allow him to start becoming insolvent again.
And the working man thinks to himself of the twenty or thirty pounds that
he owes, and how pleasant it would be if an accountant would add it up and
a judge tell him that he need not worry any more about it; but when he
begins to inquire further into the subject he finds that bankruptcy is one
of the good things of this world that he cannot afford.
Bankruptcy, successful bankruptcy, is not so easy of achievement as you
might think. It is not everyone who knows how to become a bankrupt. There
are a lot of big, expensive law books written on this subject by clever
fellows who spend their lives soothing the bankrupt's last hours and
winding him up according to law and order, with costs out of the estate,
but you need not study these to learn how to become a bankrupt. Most
bankrupts are pig-headed fellows, and achieve bankruptcy in their own
foolish amateur way. They read the books about it afterwards.
To begin with, you certainly want money, or at least an overdraft and
plenty of credit. Intending bankrupts generally wear very good clothes;
especially are they particular about the shine of their silk hat. Bankers
and intelligent business men have, in all ages, given credit to top hats,
white waistcoats, and gold watch chains. The poor man has none of these,
and therefore cannot obtain that overdraft which is one of the first
essentials of bankruptcy.
The bankrupt has a curious affection for jewellery. He buys large
quantities of this commodity, and sells it again at a loss to stave off
the evil day and add to his deficiency. I read in the Board of Trade
reports of a failure due to gambling and extravagance, in which the debtor
purchased jewellery for £40,000 and sold it the same day for £10,000. If
he had been a poor man I think maybe the police would have tried to find a
law to give him a rest cure for a few months in one of His Majesty's
gaols, but he failed for over £70,000, and the probable value of his
assets was £175.
Perhaps he was a bit of an aristocrat. Anyhow the police left him alone. I
cannot even tell you his name, for the kind Inspector-General in
Bankruptcy, fearful of causing pain to the sorrowing, never tells you the
names and addresses of the people whose history he writes. He speaks of
him as "No. 1512 of 1911." The poor fellow had no occupation, his cruel
father only allowed him a miserable thousand a year, so what could No.
1512 do but run into debt? The wonder is that he failed for so little as
£70,000.
No. 614 of 1907 was not much of a record, but he will do as another
example. He, too, had no occupation except qualifying for a bankrupt and
ultimately failed for £21,292 with assets _nil_. He started his wild
career at the age of nineteen with expectations of a fortune when he got
to the age of twenty-five. With that charming simplicity and cunning,
characteristic of the whelps of the vulgar rich, he proceeded to
moneylenders, and at the date of the receiving order had created charges
exceeding £430,000 on his reversion of such complexity that every
mortgagee disputed the right of every prior encumbrancer. This would not
matter so much, as all these victims were doubtless moneylenders and a lot
of the money would go to estimable lawyers to smooth out the wrinkled
parchment muddle, but then at the back of all those were the unsecured
creditors, poor tradesmen and others. They were to get nothing.
No. 1103 of 1908 was an even smaller fellow. This debtor was educated at
Oxford and, on leaving the university in 1901, he was in debt to the
extent of £4,500. I have a passion for statistics, and I should like to
see a balance sheet showing on one side the expenses of the four thousand
Oxford undergraduates during three years of residence, and on the other
side the earnings of the same four thousand undergraduates for a similar
period in, say, fifteen or twenty years afterwards. I fear it would not
be much of an advertisement for Oxford. No. 1103's father paid up his
creditors to the extent at least of fifteen shillings in the pound, and
gave him a fresh start. He was in trouble again in 1906, through betting
and extravagance, and failed for £20,392--assets £1,103.
The French have an excellent system of declaring these youngsters to be
prodigals and putting them under a committee as we do lunatics with
property, and no doubt in money matters they are akin to the insane, and
are really to be pitied and cared for. But to the poor it must be strange
to see debt and the disaster of debt causing such different results in law
to different classes of people, and it must be hard for them to understand
why they, too, are not fit subjects for the blessings of bankruptcy rather
than gaol.
And what am I to say to my friend Joseph the signalman, at twenty-nine
shillings a week, when he shows me some of these spicy stories of the
Inspector-General's report cut out of the local paper.
"What has it all got to do with you, Joseph?"
"Well," he says, "I've been thinking why should not I do a bit of a
failure like No. 1512 of 1911? I can buy a gramophone and a watch, and a
few lucky wedding rings and a family Bible, and a plush drawing-room suite
on the instalment system, and I can borrow a pound or two on a promissory
note. Of course betting and beer cannot be done on the nod in my class of
life, but one can owe a bit of rent, and altogether I see my way to do a
failure up to, say, thirty pounds. Why shouldn't I go bankrupt?"
"Well, the answer is very simple," I have to tell him. "The rules of the
game are made by the rich for the rich, and not for you, Joseph, at all.
Oh, dear, no! In the first place you must have a debt of fifty pounds."
"Well," replies Joseph, "I think I could bring it as high as that if I
tried."
"And next you must have a creditor to make you bankrupt, and unless he
thinks there is some stuffing in you or wool on your back a creditor is
not going to waste his time and money making the likes of you bankrupt."
"But," says my hopeful friend Joseph, "what is the meaning of a chap
filing his own petition? I've often read of that. Why shouldn't I file my
petition?"
"My dear, simple fellow, you surely do not think the clever ones of the
earth who look after your interests have not thought all that out? You
take your petition to the Bankruptcy Court and see what happens. You will
find the usual janitor at the door with his open palm. Of course you are
expected to pay a fee--you have learned enough about English Courts to
know that you do not get 'owt for nowt' in any of them. But in the
Bankruptcy Court, my young friend, they foresaw you coming along and they
have put the figure too high for you. Ten pounds, money down! That's the
price. If you want to set all the pretty little figures working, the
official receiver smiling, the registrar writing it all down, and the
judge nodding on the bench, and the Board of Trade publishing statistics
about you--ten pounds into the slot, my young friend, and the figures will
work.
"But you have not got ten pounds, Joseph, and you could not raise the sum
if you tried, so you will have to go back to work and pay twenty shillings
in the pound somehow. And don't go and sell your gramophone and
drawing-room suite, for they are on the hire system, and that would put
you in the dock, where I hope you may never be. No. 1512 bought his
£40,000 worth of jewels out and out, or said he did, and it was a Paris
jeweller, anyhow, and I believe he was one of the 'nuts' and not your
class at all, Joseph, but you may take it from me that you must not expect
to be treated as he was. Have I said enough, my dear friend? Are you quite
satisfied? Bankruptcy, I can assure you, is not for Joseph. Oh, dear, no!"
It is only fair to the law and to the memory of Mr. Chamberlain, who made
the law, to remember that when he introduced the Bankruptcy Act of 1883 he
invented a system of small bankruptcies called administration orders,
whereby poor folk whose debts do not amount to fifty pounds may make a
composition with their creditors. Let me set down in his own words exactly
what he intended and tried to do. I quote from his speech on the second
reading of the Bill:
"What he now desired to call attention to was the clause which followed
and which dealt with the case of debtors who owed less than fifty pounds.
That was the class of debtors who filled our County Courts with plaints
and added very considerably to the number of the occupants of our gaols.
It had always been felt to be a great hardship that while a large debtor
could with ease relieve himself of all his liabilities he or his trustees
might be prosecuting a poor man for thirty or forty shillings, and the
latter might be sent to prison without having any means provided for him
to make a composition with his creditors, and when, after satisfying the
debt, he came out of gaol he was still liable in full to all his other
creditors."
* * * * *
"But the more important provision which he had made for dealing with this
subject was that under which a County Court judge might in future make an
order for the payment by a debtor who owed less than fifty pounds by
instalments or otherwise of all or any part of his debts. A debtor who was
brought up on a judgment summons or a County Court plaint might state that
he was indebted to other persons, might give in a schedule of his debts
and propose an arrangement for discharging them, and, if the Court thought
it reasonable, it might at once confirm it, so that a small debtor would
thus be in exactly the same position as a large debtor who had succeeded
in making a composition with his creditors or in arranging for a scheme of
liquidation. Although he had not abolished in all cases imprisonment for
debt, yet, if these provisions became law, it could no longer be said that
any inequality existed as between rich and poor. The resort to
imprisonment to secure payment would be much easier, and a large
discretion would be vested on the judges to arrange for the relief to the
small debtor by a reasonable composition."
I have set this out at length because it is enormously encouraging to know
that thirty years ago Mr. Chamberlain's ideal was to destroy the County
Court imprisonment for debt and to give the working man who fell into debt
a bankruptcy system similar to that of the rich.
Why did it fail?
Well, it has not been wholly a failure, but it certainly has not fulfilled
all its author's generous hopes. In the first place the fifty-pound limit
is too small, another reason of its non-success is that it is a voluntary
system of some complication in competition with the simple, brutal method
of the judgment summons and imprisonment for debt, but probably its
unpopularity is chiefly due to the fact that the Treasury has always
deliberately crabbed it by imposing harsh and unreasonable fees.
No system of this kind will be successful without compulsion and some
clerk of the Court in the position of an official receiver to advise the
poor how to go about the matter and to see that the order made is carried
out. Such a system is in vogue in some Courts and has proved a success in
mitigating imprisonment for debt and holding out a helping hand to those
who were drifting into insolvency. But the system as it stands depends too
much on the initiative of the County Court judge or the registrar. Thus
we find on a working-class circuit like Oldham, Rochdale, etc., there will
be over six hundred orders made, whereas in Whitechapel only two orders
are made in the same year. Systems favourable to the working classes
flourish more vigorously in the North than in the South.
You must not suppose the working man is allowed to cast off his debts in
the wholesale way in which the thorough-bred, blue-blooded bankrupt does.
Not a bit of it. The order made against him is that he shall pay his debts
to the extent of so many shillings in the pound at so many shillings a
month. If he does not carry out the order there is prison for him for
every instalment he fails to pay if the judge so orders, or at the best
his order is rescinded and all his creditors are down on him again as
before.
But the main drawback to the business is the extortionate fees charged by
the Treasury. Here is a poor devil with twenty-five shillings and a wife
and family and, let us say, thirty pounds of debt, and the judge gives him
an administration order to pay ten shillings in the pound at five
shillings a month. The Treasury are at once down on him. Their fees are
always calculated, not on the dividend paid, but on the total amount of
the debts, and they insist in every case on two shillings in the pound.
Thus, in the case of the man with thirty pounds of debt, the Treasury want
three pounds money down before the creditors get anything. In 1911 the
Treasury took no less than £13,000 in these fees.
In this matter we cannot acquit the law of the offence of grinding the
poor. Imagine a wealthy country like this squeezing the insolvent poor out
of their weekly pittances instead of helping them to pay their debts. I
call it a wicked policy for the State to throw impediments in the way of a
working-class man who is struggling out of the back-waters of debt into
the fairway of solvency.
Do not let us shut our eyes to what it means, for the Treasury is only our
servant and ought to be doing our will, and the responsibility is yours
and mine. For we know that every penny of that £13,000 comes out of the
mouths of hungry women and children or, at the best, robs them of so many
boots and so much clothing.
What fees do the Treasury receive from No. 1512 of 1911 and his like? Two
shillings in the pound on the rich man's £70,000 of debt might enable the
Chancellor to treat the poor more leniently. But the rich man pays his
entrance fee of ten pounds and is a life member of the Bankruptcy Club.
The Treasury never thinks of touching him for a subscription of two
shillings in the pound on the amount of his debts. Some day there will
come along a Chancellor of the Exchequer who will be a Good Samaritan, and
the Treasury will cease to strip the poor debtor of his raiment to the
tune of £13,000 a year.
Of course it is very easy to blame a public department and throw ugly
words at the lords thereof. One gets into a bad habit of blaming those in
high places for the inequalities of things. I wonder if I were Chancellor
whether I should get rid of that shameful tax on the poorest of the poor.
Perhaps not. After all, the Good Samaritan was speculating with his own
oil and investing his own twopence. The oil and the twopence of the
Exchequer belong to the public and must be dealt with according to the
rules of statecraft.
And there may be some grave national danger beyond my humble ken that
makes it necessary for England to dirty her hands with that £13,000.
CHAPTER VII
DIVORCE
"We have thought to tie the nuptial knot of our marriages more fast
and firm by having taken away all means of dissolving it; but the knot
of the will and affection is so much the more slackened and made
loose, by how much that of constraint is drawn closer; and on the
contrary, that which kept the marriages at Rome so long in honour and
inviolate, was the liberty every one who so desired had to break them;
they kept their wives the better because they might part with them if
they would; and in the full liberty of divorce, five hundred years and
more passed away before anyone made use on't."
MICHEL DE MONTAIGNE: "Essays."
Translated by Charles Cotton. Book II., Chap. XV.
Nearly four hundred years ago Thomas Cranmer, Archbishop of Canterbury,
was burned at the stake over against Balliol College, Oxford. You remember
how a few days before, in a moment of weakness, he had signed a
recantation, and how when the fire was kindled and the flames licked up
the faggots they revived the spirit of the martyr within him, and he
thrust his right hand into the flames, crying out: "This was the hand that
wrote it; therefore it shall first suffer punishment." But if that hand
had offended in matters spiritual, in practical matters it had done good
work for the State.
Cranmer's "Reformatio Legum Ecclesiasticarum" contains some of the best
sense about divorce law reform that I have ever read. Its proposals are
moderate, sensible and in harmony with the religious ideas of his day,
which seem to have been broader and more rational than those of to-day.
Had Edward VI. lived a little longer Cranmer's treatise would have been
enacted as the statute law of the country. It is pitiful to think of the
four hundred years of misery and injustice under which the citizens of
this country have suffered in matters relating to divorce owing to a
change of Government in 1553. The Scots did better out of the Reformation
and have had a more or less satisfactory divorce law in working order
since that date.
Shortly, the propositions that Cranmer proposed were these, and they will
be found, I think, to run parallel with the views of the common-sense
citizen of to-day. He laid down the command that no husband or wife may
abandon the other of his or her own free will and, in order that this
might be a practical ideal, he set down the causes for which the Courts
were to grant relief. Divorce was allowed for adultery, unless both
parties were guilty; desertion; the unduly protracted absence of the
husband; or the deadly hostility of the parties. Prolonged ill-treatment
of the wife gave her a right to divorce, but even here, as long as there
was any hope of improvement, the duty of the ecclesiastical judge was to
reason with the husband and make him give bail for good behaviour. Only in
the last resort must "she on her part be helped by the remedy of divorce."
Great stress is laid throughout the treatise on the desirability of
reconciliation. "Since in matrimony there is the closest possible union
and the highest degree of love that can be imagined, we earnestly desire
that the innocent party should forgive the guilty and take him back again
should there seem to be any reasonable hope of a better way of life."
Practical effect was to be given to this principle by the Court before
proceeding to divorce.
Cranmer was entirely at one with the more advanced thought of to-day in
his detestation of "separation orders." Separation without divorce was, he
realised, an overture to immorality.
"It was formerly customary," he writes, "in the case of certain crimes to
deprive married people of the right of association at _bed and board_
though in all other respects their marriage tie remained intact; and since
this practice is contrary to Holy Scripture, involves the greatest
confusion, and has introduced an accumulation of evils into matrimony, it
is our will that the whole thing be by our authority abolished." What he
would have said about our wholesale police court method of separating
married people without giving them any rights to form new ties one does
not like to imagine. One cannot turn from the short and pithy "Reformatio
Legum Ecclesiasticarum" of the sixteenth century to the colossal unwieldy
Blue Books of the twentieth century with any sense of satisfaction.
Perhaps the most interesting thing to be got out of the latter is a study
in contrasts between the body, flavour, and bouquet of archbishops of
different vintages.
Thomas Cranmer's services to the State being no longer available after
the Balliol fire, the choice of his Majesty Edward VII., when he issued
his Royal Warrant in 1909 for the Divorce Commission, fell on "The Most
Reverend Father in God Our right trusty and entirely beloved Counsellor
Cosmo Gordon, Archbishop of York, Primate of England and Metropolitan."
One would have hoped that after four hundred years further consideration
of Cranmer's views on divorce--the latter-day representative of Cranmer's
Church would have been able to give King Edward VII. at least as good
counsel as his predecessor gave to Edward VI. No doubt the Minority Report
that he ultimately wrote fairly represents the narrower views of modern
ecclesiastics, but it is a sad thing to see the leader of a great Church
absolutely out of touch with the practical reforms that those who know the
lives of the poor admit to be necessary. I should regret if, in a moment
of spiritual insight, it should be made clear to our good archbishop that
in signing the Minority Report his right hand had been guilty of offence,
or that he should think fit to discipline himself after Cranmer's example;
but if he had thrust his Minority Report into the fire, Church and State
might have sung a joyful psalm of conflagration and congratulation. Alas!
Edward VI. passed away without reform, and our brave King Edward VII.
changed his world whilst the Commissioners were still commissioning, and
maybe it will be Edward VIII.'s turn some four hundred years hence to sign
the new divorce law. Let nothing be done in a hurry.
From Cranmer's day until 1857 no divorce law was passed. In the meantime,
if you were a peer with a naughty wife, you got an Act of Parliament
passed to divorce her. It was an expensive proceeding and, incidentally,
of doubtful legality. But the eugenics of nobility and the purity of breed
in the peerage made some such machinery necessary, and so you had "An Act
for Lord Roos to marry again," and others similarly entitled. Only the
very rich at the rate of two or three a year could avail themselves of
this procedure, and, of course, the very poor had not a look in at all.
It was a judge who awakened the world to the iniquity of it all, and he
did it by a jest. There are some funny things said in the High Court
to-day, but they do not seem to be designed to push the world along as
this witty speech did. It was Mr. Justice Maule--a sly dog, the hero of
many a good circuit story--that one about the threatening letters, for
instance--it was Maule J. in a bigamy case, _Regina_ v. _Thomas Hall_,
tried at Warwick in 1845, who woke up the country to the fact that there
was a divorce problem, and that it wanted solving.
Hall was a labouring man convicted of bigamy and called up for sentence.
Maule, in passing sentence, said that it did appear that he had been
hardly used.
"I have indeed, my Lord," called out poor Hall, "it is very hard."
"Hold your tongue, Hall," quoth the judge, "you must not interrupt me.
What I say is the law of the land which you in common with everyone else
are bound to obey. No doubt it is very hard for you to have been so used
and not to be able to have another wife to live with you when Maria had
gone away to live with another man, having first robbed you; but such is
the law. The law in fact is the same to you as it is to the rich man; it
is the same to the low and poor as it is to the mighty and rich and
through it you alone can hope to obtain effectual and sufficient relief,
and what the rich man would have done you should have done also, you
should have followed the same course."
"But I had no money, my Lord," exclaimed Hall.
"Hold your tongue," rejoined the judge, "you should not interrupt me,
especially when I am only speaking to inform you as to what you should
have done and for your good. Yes, Hall, you should have brought an action
and obtained damages, which probably the other side would not have been
able to pay, in which case you would have had to pay your own costs
perhaps a hundred or a hundred and fifty pounds."
"Oh, Lord!" ejaculated the prisoner.
"Don't interrupt me, Hall," said Maule, "but attend. But even then you
must not have married again. No, you should have gone to the
Ecclesiastical Court and then to the House of Lords, where, having proved
that all these preliminary matters had been complied with, you would then
have been able to marry again! It is very true, Hall, you might say,
'Where was all the money to come from to pay for all this?' And certainly
that was a serious question as the expenses might amount to five or six
hundred pounds while you had not as many pence."
"As I hope to be saved, I have not a penny--I am only a poor man."
"Well, don't interrupt me; that may be so, but that will not exempt you
from paying the penalty for the felony you have undoubtedly committed. I
should have been disposed to have treated the matter more lightly if you
had told Maria the real state of the case and said, 'I'll marry you if you
choose to take your chance and risk it,' but this you have not done."
And so the judge gave Hall three months or, as some say, four. But that
was because he had not told Maria all about it. It was for not playing
cricket, not for breaking the law. And where the parties commit bigamy out
of sheer respectability and a desire to placate Mrs. Grundy and have some
marriage lines in a teapot on the mantelpiece to show the lady who lives
next door, the judges, providing there is no deception, wisely treat the
offence as something far less deserving of imprisonment than non-payment
of rates. Why the police prosecute in these cases the chief constable only
knows.
And the scorn and irony that Maule poured on the law of divorce roused the
public conscience, and there was a Royal Commission in 1850 and a Divorce
Act in 1857, and the result was the Divorce Court as we know it, an
excellent tribunal for the matrimonial troubles of well-to-do people, but
of no use to poor Hall and Maria. For Maule's words slightly paraphrased
might be as truly spoken to the bigamist of to-day as they were to poor
Hall.
And four years ago we had another Royal Commission, and hundreds of
witnesses were examined, and papers and reports handed in, and many days
spent in collating and considering the same, and much stationery consumed.
It was a shabby thing to the poor to institute this long-winded inquiry.
There was nothing to inquire into. The mountain has finished groaning, and
the expensive and ridiculous mouse has made his appearance--and all it
comes to is that what good old Thomas Cranmer said ought to be done in
1550 the majority think might be experimented on in 1914; only--the
archbishop of to-day is no longer on the side of reform.
That, I suppose, shows us very fairly the pace at which the world moves
forward and the Church moves backward. In a great and necessary social
reform, such as this, the Church occupies the position of the
old-fashioned horse lorry strolling down the middle of the road amiably
blocking the modern traffic of the city. It is all very pleasant and
reassuring to those nervous folk who fear we are rushing like Gadarene
pigs into a sea of legalised vice and immorality, but to visionaries and
dreamers like myself who would like, as the children say, "to see the
wheels go round" in their lifetime, it has its mournful side.
There are two ways in which those who are satisfied that the world is the
best of all possible worlds meet proposals for reform. If they are backed
up by popular clamour and agitation they say with some show of reason
that it would never do to give way to threats of violence. If, on the
other hand, the campaign for reform is conducted by mannerly argument it
is commonly said that there is no demand for a change. Comfortable
clerical persons are never tired of telling you that there is really no
demand from the poorer classes for any reform of the divorce laws.
True, people do not go out in the streets and break the windows of Cabinet
Ministers or make themselves politically disagreeable after the fashion of
the middle classes who have grievances real or imaginary. But anyone whose
advice is sought by the poor in their troubles knows that the demand for
divorce exists if it were of any use uttering it aloud to our smug and
respectable rulers. Of course the demand or no demand is immaterial to
anyone who has grasped the fact that it is a principle of elementary
justice that the poor should have the same audience and remedies in all
our Courts as the rich.
The real demand for divorce is to be found in the circumstances of the
lives of the poor. I propose to set down a few typical cases drawn in
every instance from public published records.
Jane married Fred when twenty-two years of age. Soon after the marriage he
began to ill-treat her and would not work. Jane's parents helped them in
business. Fred continued his ill ways and at length gave Jane a beating.
Jane took out a summons, but would not face the Court, and forgave Fred.
After five years of unhappy married life Jane went back to her parents
taking her two children, Fred agreeing to pay her three shillings a week.
At the end of nine months he ceased to send any money and disappeared.
For seven years Jane lived with her parents until they died. After their
death she found it a great struggle to live and pay the rent. Charles now
comes on the scene, he takes lodgings and pays the rent. Ultimately
Charles and Jane live happily together and there are two children of the
union. Charles provides for Fred's children as well as his own. Charles
and Jane would like to marry for their own sake and for their children's.
In so far as there is any sin or immorality in this story the promoters of
it and the sharers in it are those who stand in the path of divorce
reform.
Here is another typical case. George marries Mary, their ages are eighteen
and seventeen. Soon after marriage Mary--who comes of an immoral
family--starts drinking and going about with other men. Ultimately she
deserts George and becomes pregnant by another man and is confined in
hospital. The guardians proceed against George for the expenses of the
confinement, but he is able to prove to their satisfaction that he is not
the father of the child. Mary then disappears to further infidelities and
George goes back to live with his mother. Later on Anna appears on the
scene and George and Anna have now a comfortable home and healthy infant.
"They think a deal of it and wish it could be legitimate."
So, no doubt, do Charles and Jane and many other poor parents in like
case. The law says that these people are entitled to have a divorce, only
the law erects its Court in a corner of London inaccessible to these poor
provincials, and makes the costs and fees and services of its judges and
officials and counsellors so expensive that there is no possibility of
Charles and George, and Jane and Anna, and their little infants having the
blessings of legal and holy matrimony because they have not the cash to
purchase the luxury which is not for the likes of them anyhow. And when it
is suggested that divorce might be cheapened and made available for these
poor citizens archbishops shake their heads, and legal bigwigs, with their
eye on the fees and the costs, hold up their hands in amazement. Divorce
is a reasonable proposition for Marmaduke and Ermyntrude, of "The Towers,"
Loamshire, but for George and Anna in Back Tank Street,
Shuttleborough--not likely. There is no demand for it, says the Minority
Report, and its worthy authors point out with cynical contempt for the
working classes that they have got a system of separation orders which is
really all they require.
Now if there is one thing which the evidence before the Commission puts
beyond doubt it is that the law in relation to separation orders induces,
invites, and causes immorality in the poor. Cranmer, you remember, knew
all about that, and looked on separation without the right to remarry as
an unclean thing. But since the sorrows of the poor in their marriage
shipwrecks were so manifest, and the Divorce Court was closed to them,
systems of magisterial separation orders, cheap permanent divorces,
without the right to marry again, have become the order of the day.
There are some six thousand of these decrees made annually. The evidence
is overwhelming as to the evils that spring from these orders. As Mrs.
Tennant reports, "I believe that separation orders, the general
alternative offered to divorce, work badly in working-class houses, and on
the whole make for an increase rather than a diminution of immorality. We
have to consider housing conditions and economic circumstances which often
do not make for clean or wholesome ways of life, and where the relief
offered by separation is not only inadequate but positively mischievous."
Put in plainer terms by the witnesses, a labouring man, if he has to find
a home for his children, has to find a woman to keep house for him; a
woman of the same class has to pay a rent, which necessitates the taking
in of a lodger. Human nature being what it is, it seemed superfluous to
appoint a Royal Commission of trusty and well-beloved ones to tell us what
would happen. This is a system that the Archbishop of York thinks
"probably fulfils its purpose fairly well."
Of course, it all depends what its purpose may be. If it is its purpose to
stand in the way of cheap divorce and the rights of the poor to have the
same chance of rescue from a shipwrecked marriage that the rich possess,
all is indeed well. But if the object of the law is to bring to those who
are weary and in misery some hope of a new life and a new home where
children can be born without shame and the parties can live in accordance
with the wishes of themselves and their neighbours, then with all respect
to the Primate of England, the law is probably fulfilling its purpose very
damnably.
It is only fair, of course, to remember that the Archbishop of York and
his learned colleagues of the Minority Report never meet Fred and Jane and
George and Anna in real life, and can know no more about such folk at
first hand, and have as little chance of understanding their point of
view, as I have of studying and comprehending the sociological limitations
of the higher priesthood.
Detestable as I hold these ecclesiastical errors to be in their practical
bearing on the lives of the poor, I am hopeful that time and argument will
overcome the ecclesiastical veto on reform. I am sure that even a bishop
would be converted to healthier views of life if he could have a little
home chat with George and Anna. And if their pleading did not convince
him, I have a belief that the sight of their babies might touch the heart
which even in a bishop, we may suppose beats somewhere beneath the chimere
and rochet or whatever the vestments are called in which his lordship
disguises his human nature from the lower classes.
Many of our judges and other learned men see very clearly the enormous
importance of divorce reform to the poor. Mr. Justice Bargrave Deane put
the matter very straightly to the Commission when he said, "The question
of divorce is more a question for the poor than the rich. The rich have
their homes and their comforts and their friends who are of a different
position and who can by their own advice and conduct keep people
straight." In so far as this implies that the standard of morality or
etiquette of decent matrimonial conduct is stricter among the rich than
the poor, I doubt its truth. The working classes have no leisure for
flirtations and philandering. The behaviour of a fast set in a wealthy
country house--which is generally more vulgar than really naughty--would
probably scandalise the dwellers in a back street. But what the learned
judge wished to emphasise was that the consequences of ill-conduct in a
husband or wife are far more serious in the everyday life of the cottage
than in that of the mansion. Here he is undoubtedly right.
What, for instance, can be more terrible than the effect of persistent
drunkenness on the married life of the poor. Alfred and Anna have two
children. The man earns thirty-two shillings and sixpence a week when in
full work and is a thoroughly decent and respectable man. His wife is an
inebriate. She pawns everything for drink and neglects her children. Her
husband obtains a separation order, but after three years Anna promised
reform, and Alfred, like the good fellow he was, took her back.
Unfortunately in two months she was as bad as ever, and furniture,
bedding, clothes, all the household goods disappear to the pawnshop. The
children are reported upon by the school authorities. The parents are
prosecuted for neglect, and on Anna agreeing to go to an inebriates' home
for twelve months the bench postpone sentence. When she comes out she is a
wreck, suffering from alcoholic neuritis which is leading to paralysis.
During her absence Alfred has had to pay seven and six a week for her
maintenance. He now allows her five shillings a week and she lives with
her sister. He is on short time earning twenty-six shillings a week. The
children are without mother, the home is without a woman's care and
influence and his income is rendered insufficient to provide the
necessaries of life.
Here is another picture--John married Catharine in 1896. There was one
child. When the infant was nine months old Catharine was forced to leave
her husband on account of his drunken habits. The child went to its
grandmother and Catharine went to service for seven years. After that time
she met Charles, a widower, with one child. Being a brave and sensible
woman she went to live with him as his wife. They have two children of
their own now, one is three years old and the other six months. They have
a good home and are very happy, and would like to be married if the law
allowed it.
Now all that religion has to tell us about these cases is that marriages
are made in heaven and that heaven having once made these two utter messes
of human affairs, it is impious for human hands and minds to try and
mitigate the evil for which heaven is responsible. I wish those for whom
these old-world blasphemies have merely a folklore interest would leave
this so-called religion mumbling in its outer darkness and apply their
practical minds to so reforming the law that the lives of Alfred and Anna
and Catharine and Charles and their innocent babies, and hundreds of
other good men and women and innocent children, might no longer have to
live in this civilised country under any legal disability or under any
social shadow of ignominy or shame. In practice these folk very often do
marry again without the blessing of Church or State, as in the last-cited
case, and live useful and virtuous lives, bringing up happy children in
good homes. The law should assist such citizens in the interest of the
State, for the community want good homes and healthy children leading
happy lives.
The recommendation of the Majority Commission in this matter is a very
conservative one. It is that habitual drunkenness found incurable after
three years from a first order of separation should be a ground for
divorce. This, coupled with divorce for cruelty or desertion for three
years and upwards, would certainly cover some of the sadder cases that
were brought to the notice of the Commissioners.
The right of the State to refuse divorce in the case of the insanity of a
party to a marriage seems hardly arguable. Here is one of the many sad
stories. Norah married a soldier twenty years ago. Fourteen years ago he
was taken to an asylum, where he still is, and Norah applied for relief.
She was offered scrubbing work at the workhouse from 7 a.m. to 6 p.m. at
nine shillings a week and some bread, or two-and-six a week and six pounds
of bread, with liberty to take in two lodgers. Norah, to be with her
children, chose the latter. John was one of the lodgers. He found his way
to Norah's heart by buying presents of boots and clothing for the
children. And so Norah and John became man and wife, save and in so far as
the law refused them that status. As Norah told a lady visitor, "I suppose
you think it was wrong for me to drift into our present way of living, but
it was such a struggle and he was so good to us. I have never been killed
with wages, but we are as comfortable as we can be. I often wish we were
free to marry because we do not like our children being illegitimate, and
people look down on a woman so, if she lives as I am doing."
In this matter it is cheering to know that the archbishop and his learned
adherents in their Minority Report are prepared to make some concession. I
state this with pleasure, remembering the wise words of that good old
Welsh parson, the Rev. John Hopkins, of Rhoscolyn, who said, "Indeed,
Judge Parry, remember this, one must be charitable even to dissenters." _A
fortiori_ one should be just even to archbishops, and it is hopeful that
in the matter of insanity where one of the parties is either of unsound
mind at the time of the marriage or in a state of incipient mental
unsoundness which becomes definite after six months of marriage and the
suit is commenced within a year of marriage the Minority Report timidly
proposes that such a marriage might be annulled.
What the difference in principle may be between the cases of a mad husband
who has been married for six months and a madder husband who has been
married for six years the learned ones do not inform us, but we may
regard it as a sign of grace that there are some matrimonial miseries that
seem to these hard-hearted pundits worthy of sympathy and relief.
No protest seems to be made by the Church against the go-as-you-please
divorce methods of to-day among the upper classes, but if divorce by
consent does not exist among the rich it shows great rectitude and
self-denial on their part. One often reads of a case like the following
one. Mrs. A. is neglected by her husband, who leaves her. She asks him to
return and he refuses. She files a petition for restitution of conjugal
rights. The Court makes a fourteen days' order on the undefended petition.
I wonder if such an order has ever been obeyed or was ever intended to be
obeyed. On receiving the order Mr. A. writes that he is not coming back,
but that he will be found staying at a certain hotel with another lady
under the style of Mr. and Mrs. A. Inquiries are made, and this proving
true a divorce petition is filed. This again is undefended and the decree
_nisi_ goes as of course.
It is conceivable that such a procedure might be used by two intelligent
persons who did not respect the laws of their country as a method of
divorcing each other by consent, but I have no doubt that the well-to-do
who constantly go through these forms are far too scrupulous in their
observance of the letter and spirit of our divorce law to be guilty of
anything that could be construed into collusion.
I do not think that in this country, except among wild and fanatical folk
and some of the fast set with whom we need not concern ourselves, there
is any demand for divorce by mutual consent. But, even if this were
enacted, it does not follow, as Montaigne has told us, that it would be
used. The idea that a more reasonable system of divorce will lead to a
wholesale system of divorces is an absurd folly, a bogey used by ignorant
but honest clericals to frighten good people who rather enjoy being scared
to death. The fat boys of sociology love to make their victims' flesh
creep, and when they speak of divorce reform constantly suggest that human
nature tends to immorality in matrimonial affairs. As a matter of fact
human beings naturally prefer marriage and married life where it is at all
a successful institution to divorce and divorced life. This is wonderfully
illustrated in Belgium where, as M. Henri Mesnil, the French avocat,
points out, divorce law "as provided for by the Code Napoléon has remained
in force down to the present day: in spite of the long predominance of the
Catholic party dissolution of marriage by mutual consent is still possible
in that country. I might say that although possible it is a very rare
thing. I think only one case of divorce by mutual consent will be found
amongst four hundred cases in Belgium."
Here we have the results of a hundred years' experience of a European
country not unlike our own. It bears out exactly what one would expect,
and it is only by ignoring such evidence and referring to the laxity of
State procedure in America, without reminding the reader that there is no
evidence of any greater laxity in the state of morality there than
elsewhere, that the Archbishop of York and his friends can claim that the
"preponderating voice of history and experience"--a charming phrase--is in
favour of their Minority Report.
The archbishop treats history as Moses treated the rock. He strikes it
with his archiepiscopal staff and there flows forth a gush of watery
precedents to rejoice the hearts of the faithful. A poor pagan like myself
can only approach the rock with a humble geological hammer and, knocking a
few chips off it, report that it does not come of a water-bearing family.
Outside miraculous draughts of history there is nothing to be found in the
past experience of social life that tells against a reform of our present
divorce laws.
But no reform in the law will be of the least use to the poor unless
jurisdiction in divorce is given to the County Court. The opposition to
this is twofold. It comes from those who object to any reform at all and
see that by keeping divorce costly you naturally limit its use, and,
again, it comes with even greater force from those who are making their
money out of the present system. Very naturally the Divorce Court Bar,
having an excellent paying business all to themselves, do not want to
share it round with other people. Towards their trade union attitude of
mind I have every sympathy. But when it is more than hinted that it would
really be beyond the capacity of a County Court judge to try those "very
difficult considerations of cruelty, condonation and connivance," I prefer
the alliteration of the phrase to the sense of it. There is really no
mystery about divorce law. The issue is an absurdly simple one, of grave
importance to the lives of the parties certainly, but to a lawyer with a
business mind far easier to try than many of the issues that arise every
day in bankruptcy, Admiralty and commercial cases, and in arbitrations
under the Workmen's Compensation Act.
The daily work of a County Court judge is not less difficult than that of
his High Court brother. The complication of a case does not depend upon
the amount at stake, and the County Court judge has, if anything, to have
a somewhat wider knowledge of law and a far greater knowledge of the lives
of the poor than any other judicial person, since the legal subjects he
deals in are more varied in character than those met with in other Courts,
and he naturally sees more of the daily life of the people. Certainly the
High Court judges get better assistance from the Bar, or rather, I should
say, more assistance--or should it be assistance of greater length?--but
the County Court Bar of to-day contains the pick of the younger men, and
is really the nursery of the common law Bar since it is only in the County
Courts that a catholic experience in civil advocacy can be obtained. I
noted with some interest that in a recent batch of silks seven or eight
had been before me, some of them several times within a few months of
their taking silk.
When there is a divorce case of any importance--in the same way as if it
were a libel case of importance--great advocates with no special knowledge
of the mysteries of divorce law are called in to lead the specialists.
What is wanted is advocacy, not knowledge of divorce procedure, and the
County Courts have excellent advocates to-day. If there is one special
branch of law where one would think expert knowledge is essential it is
Admiralty, yet important Admiralty cases belong to County Court districts
where for aught anybody knows or cares the learned judge and the advocates
may not know the difference between a bowsprit and a rudder.
But the real reason why the County Court should be chosen for this work in
the interests of the poor is to my mind the real reason why the County
Court is popular with business men and the High Court is not. In a
properly managed County Court a case is set down for a certain day and,
except on rare occasions, it is tried on that day. As Mr. Dendy, the
learned registrar, pointed out to the Commission, "There's no doubt it is
of very great advantage to a poor man to know the day on which his case is
likely to be tried." It is indeed essential. The man himself and his
witnesses do not belong to a class who can spend leisured hours flitting
about Gothic corridors or waiting to be fetched from public-houses day by
day until their case is reached. Certainty of trial and reasonable speed
in reaching and disposing of the case are worth much more to business
people than abstruse technical knowledge or long experience of the habits
and manners of those who commit adultery. No one has more reverence than I
have for the views of Lord Alverstone, who thinks divorce jurisdiction
should not be given to County Courts, yet one must not forget that not
only is the opposite view supported by a large number of men and women who
know the wants of the poor very intimately, but experts, like Sir John
Macdonell and Sir George Lewis, both recognise that if you are going to
give a whole-hearted measure of reform with the intention of really
putting divorce at the disposal of the poor there is no other Court to
which these cases can honestly be sent.
Not only must this be done, but if we are to bring ourselves abreast of
what already exists in foreign countries we must do a great deal towards
cheapening the procedure even of the County Court for those who are poor.
The French have a very complete system of divorce for poor people, known
as "_Assistance Judicaire_." The effect is that the persons to whom
assistance is granted do not have to pay anything whilst they remain poor.
The State advances the necessary money. The _avocat_ and
_avoué_--barrister and solicitor--work for nothing. In case the assisted
person comes into better circumstances he may be obliged to repay the
State. If the poor litigant succeeds in his proceedings, the unsuccessful
party pays the costs. In 1907 there were 20,464 persons who applied for
assistance, 11,726 of which were in relation to matrimonial proceedings,
and relief was granted to 9,205 poor people, of whom 5,136 were seeking
different forms of matrimonial relief.
In Germany and the Netherlands divorce is equally open to poor people, who
receive State aid, and in Scotland there is a well-known system which is
known as the Poors Roll, which is said to have existed since 1424. The
Scots Parliament Act, which instituted this excellent procedure, commenced
as follows: "If there be any poor creature who for lack of skill or
expenses cannot nor may not follow his cause the King for the love of God
shall ordain the judge before whom the cause shall be determined to purvey
and get a leal and wise advocate to follow such poor creatures causes: and
if such causes be obtained [won] the wronger shall indemnify both the
party injured and the advocate's costs and travail." It is amazing to find
in Scotland of the fifteenth century laws for the poor that we are only
dimly thinking about in our vague uncertain timid way at the present day.
What actually happens to the poor man of the present day is set out in the
following case--a very common one:--
Summoned in the City of London Court for the non-payment of forty-five
pounds, his wife's costs in a divorce suit in which he was the successful
petitioner, a City messenger said that he received one hundred and
seventeen pounds a year, and while the divorce suit was pending he paid
his wife as alimony two pounds ten shillings a month. He had paid
sixty-five pounds for his wife's costs, and still owed forty-five pounds.
He had obtained an order for payment of his own costs against the
co-respondent, but as that person was only earning a few shillings a week
he did not know if he would get anything.
Judge Lumley Smith, K.C.: "Does a successful husband always have to pay
his wife's costs?"
Mr. Seyd (for the defendant): "Yes."
Judge Lumley Smith: "That is rather hard on him."
The defendant added that while the suit was pending he had to borrow fifty
pounds from his friends.
Judge Lumley Smith said a judgment debt must come in front of those of his
friends, and ordered payment of one pound a month.
This man could not have proceeded _in forma pauperis_, as by our then
system this was not open to anyone with more than thirty shillings a week
with no means above twenty-five pounds and clothing. If he had done so he
would have had neither counsel nor solicitor to plead his cause and the
only real benefit he would have obtained would be that he would not have
had to pay Court fees.
The self-respect of working men in many cases hinders them from applying
for assistance rendered nominally distasteful by the pauper taint. They
manage these things better in France, and what the poor want in England,
in fact as well as in name, is "assistance." The new rules that have come
into force this year go a little way to provide this, but it is too early
as yet to say how far they will meet the wants of the case.
There was no need for any Royal Commission on Divorce to explain to any
reasonably educated citizen what ought to be done, but I agree that the
labours of many good men and women have given chapter and verse for the
want and the remedy in a convenient form. Too much time was wasted over
the moot points of the theologians, for most citizens are agreed that
ecclesiastical opinions on the contract of matrimony as it affects the
State are of the same value and no more as ecclesiastical opinions would
be on such contracts as a bill of sale or a hire-purchase agreement, which
may equally from time to time affect adversely or otherwise the moral
conduct of human beings.
"Marriage is nothing but a civil contract. 'Tis true 'tis an ordinance of
God: so is every other contract: God commands me to keep it when I have
made it." Worthy John Selden did not mean by that that it was to be kept
for ever and in all circumstances, but that it was to be kept until such
time as the law released the parties from it in the same way as every
other civil contract. Nothing is more true and necessary to be repeated in
these days than the citizens' view of marriage law. Whatever codes
different religious men and women wish to observe they are free to follow.
But the marriage law is a question of citizenship for citizens to settle
for themselves. It is therefore satisfactory to read in the Majority
Report that English laymen seem generally to base their views, not upon
ecclesiastical tradition or sentiment, but upon general Christian
principles coupled with common-sense and experience of the needs of human
life. It is the conclusion of these men and women--not the anathemas of
priests--that want parliamentary attention. They have told us "that there
is necessity for reform in this country, both in procedure and in law, if
the serious grievances which at present exist are to be removed, and if
opportunities of obtaining justice are to be within the reach of the
poorer classes. So far from such reforms as we recommend tending to lower
the standard of morality and regard for the sanctity of the marriage tie,
we consider that reform is necessary in the interest of morality, as well
as in the interest of justice; and in the general interests of society and
the State."
When shall we find time to ease these heavy burdens of the poor and let
the oppressed go free?
CHAPTER VIII
FLAT-TRAPS AND THEIR VICTIMS
Will you walk into my parlour
Said the Spider to the Fly
'Tis the prettiest little parlour
You ever did espy.
The way into my parlour
Is up a winding stair,
And I have many curious things
To show you when you're there.
Will you? Won't you?
Will you? Won't you?
Walk in pretty Fly.
_Nursery Rhyme._
If we could remember half the wise saws and moral jingles that nurse and
granny taught us in the nursery and not forget to act upon them in after
life, what sensible citizens we should be! Some day there will be
cinematograph lectures to the young people just leaving the elementary
schools, exhibiting not only the real spider, but his many human
prototypes, who are lying in wait for the working-class man and woman at
every corner of their career. A nature lesson an the smaller tally-man
would be far more practical in a city school than a botany lecture on the
lesser celandine. Nevertheless, I doubt if it will do much good when it
comes about. Human beings are naturally divided into spiders and flies,
and of the two the latter really have the best of it. There is not much
fun to be had out of a cramped life in a dingy web counting your gains,
even if a white waistcoat and a gold chain conceal your evil conscience.
At least the fly buzzes round a bit and thinks he is seeing life before he
biffs into the web. And no one need care much about the gay young
sportsman bachelor variety--except perhaps his sweetheart, and she has a
lucky escape, poor thing! But the silly old married fly who gets caught in
the web and leaves a young wife and family starving at home, or, worse
still, the house-mother fly who rushes into the web just to look at the
spider's latest fashions which she knows her old bluebottle cannot
afford--these are sad cases.
Thomas Carlyle was mightily pleased with himself, I doubt not, when he hit
upon that phrase describing his fellow citizens as "The twenty-seven
millions, mostly fools." Those last two words are constantly in the mouth
of the odd fool in reference to the 26,999,999 other fellows. Still a long
life in the County Court compels me to the conclusion that the fool is not
extinct; he is, indeed, but too prevalent. Furthermore, the old world
saying, "that a fool and his money are soon parted," is, like many another
old proverb, a true saying.
These being the facts, why does the law side with the inappropriate knave
who preys upon the harmless necessary fool?
Scientific sociologists will no doubt tell me that if the law were to
protect the fool the effect would be to increase and multiply the breed of
fools, whereby the human race would become a bigger fool race than
already it is. To which my reply would be that the law as it now stands
makes the trade of knavery such a lucrative one that the business of it is
fast becoming overcrowded, and the best hope of the extinction of the
knave seems to lie in the fact that he will soon have to work nearly as
hard for his living as the honest man.
It is all very well to smile at the simplicity of the fool, and admire the
cunning of the knave, but let us remember that the poor fool has in each
generation to discover for himself that this is a world in which skimmed
milk is constantly masquerading as cream, and that faith in the honesty of
human nature in business affairs is in the poor man the first step on the
road to ruin.
I do not want the law to mollycoddle the fool and deprive him of the
birthright of an Englishman to make a fool of himself in his own way, but
I should like to see the law doing more to stamp out the knave,
especially--O, yes, especially--when he is a respectable, pious,
well-to-do knave clothed in broad cloth and a well-boiled shirt, tempting
the working man to part with his savings in the name of thrift and the
preparation for the rainy day.
What misery has been caused by well-advertised and wicked schemes of
investment introduced to the working man by lying promises garnished with
much prayer and psalm singing!
If a chartered accountant could make out a balance sheet of the losses of
the working class from frauds connected with building societies,
insurance schemes, house-purchase companies, and the like, from the days
of the Liberator onwards, what a terrible indictment it would be of the
way in which the law permits the rich knave to rob the poor fool! And yet
how few of the promoters of these schemes arrive at their proper
destination--the gaol.
We open our prison doors readily enough to the poor debtor, but the rich
man who lives on the stolen savings of the poor finds it as difficult to
enter the gates of the gaol in this world as he will to reach the wicket
gate in the hereafter.
Many societies have been formed under the Limited Liability Companies Acts
offering working men facilities for buying their own houses or obtaining
old age pensions or future lodgings in some glorious castle of Spain.
These have gathered in for years the savings of working men, and when the
directors were called upon to redeem their promises it was found that the
money had been spent in directors' salaries and commissions, and there was
no provision whatever for the policy-holders.
For as the law stands you may make nearly any wild promises you like, for
that is not the contract. The contract is the long-worded, obscure policy
which is sent to the workman later on. The gaudy booklet with its golden
promises and pretty pictures of villas with bow windows which the poor man
treasures up has nothing to do with the case.
Sentimental judges may try to find a way out; juries may give verdicts
returning the poor man his money; but all to no purpose. The law stands
firm for the solemn contract under the seal of the company, the policy
which the poor man has never read and could not understand if he did; and
the sleek directors chuckle at the angry working man, and with the
blessing of the Court of Appeal remind him in Shylock's own words:
Till thou canst rail the seal from off my bond,
Thou but offend'st thy lungs to speak so loud.
And certainly as the law stands it is necessary to have a Court of Appeal
stern and unbending in judgment to uphold the sacred nature of the
contract. The doubt in my somewhat sentimental mind is whether
transactions of this character between knaves and fools are in any
practical business sense really contracts at all; and if they are to be
deemed to be contracts whether power should not be given to Courts of
Justice to release the victims from the flat-traps in which they have been
snared, and give them at least some of their fur back again.
This has been attempted with the moneylender, but not at present with very
great success. For myself I have always thought that the moneylender, if
he be a real moneylender and not merely a fee-snatcher, is by no means the
worst setter of flat-traps. I have an uneasy feeling that if moneylenders
were Nonconformists or Churchmen, instead of being Jews, we should love
them better.
For if you get an actual sovereign from a moneylender you have at all
events got some concrete thing that you can exchange for food and drink
or clothing, and the token has an ascertained value; moreover, if you know
a little arithmetic you know what you are paying for it. But if you buy
clothing from a tally-man or a watch from a travelling jeweller, or a
walnut suite from an instalment furniture dealer, or a family Bible in
parts from an area tout, you can have no idea whatever of the value of the
thing purchased or the percentage of profit on the deal.
And, though I should like to see all this class of trading done away with,
and know that it causes great ruin and misery, yet to my mind the
moneylender and even the lower class of tally-men are angels of light
compared with the directors of insolvent collecting societies, who take
the savings of the thrifty poor on promises that any sensible person must
know to be incapable of performance.
As I have shown elsewhere, the bulk of the smaller flat-trap poachers
could be quietly exterminated by the abolition of imprisonment for debt.
That alone is the artificial manure which enables these social weeds to
flourish. Withhold it from them and they would wither and die, and the
world would be well rid of them.
If the man in the street could listen, as I have had to do for the last
twenty years, to tales of misery and wretchedness brought about by our
absurd credit system he would understand something of my impatience at its
continuance. I remember a small household that was ruined by a gramophone.
A poor woman, a widow, earned twelve shillings a week, and a son was doing
well at fifteen shillings a week. There were two little children. As
things go in their world they were well-to-do. The Devil, in the form of a
tout, came down the street one Saturday afternoon, with a beautiful
gramophone. It was only a shilling a week, and all that was to be done was
for mother and son "to sign just there at the bottom of the paper, and, of
course, if they did not want to keep it they could send it back."
However, later on, they found that they had signed to buy it; the boy fell
out of work, the case was put in Court, and judgment was entered against
both mother and son in default of appearance for two or three pounds. Then
the son enlisted and went to India, and I first heard of the case when
they brought the widow up on a judgment summons. I asked her why she had
signed the guarantee, and her reply was: "Tom was such a good lad and he
was in work, and he was that keen to have it I couldn't deny him." Anyone
who has ever been any kind of a father or mother will not cast a stone at
her for her folly.
That is one of the short and simple tales from the annals of imprisonment
for debt.
What match are confiding folk like these for the lying scallywags who tout
their inferior wares round the streets? And instead of our law remembering
that we pray daily to be delivered from temptation, and playing the part
of a father of the fatherless and a friend of the widows, it keeps alive
section 5 of the Debtors Act, 1869, in the interests of about as low a
class of knaves as ever disgraced the name of English trade.
I know very well that there are many good honest folk who approve of
imprisonment for debt and have fears about its abolition. These should
remember that in France and Germany and a great part of America there is
no such thing, and yet trade does not suffer and the working classes do
not starve. I should quite agree that if a man defrauds a tradesman by
lying promises or cheating he should be punished, but imprisonment should
be for fraud, not, as it is now, for poverty. As I have already pointed
out, in America no honest man is likely to get into prison merely for the
wickedness of owing money. We cannot say that is true here. In Germany the
working man lives on a cash basis. Credit is not largely given, as there
is no power of imprisonment for debt.
England is the last civilised country whose law encourages the poor to
live on credit, yet nothing is more true than this, that once start living
on credit and you cannot get out of it. It is a downward path leading to
the Slough of Despond. But until the law is amended we must be content to
look on and see the poor in the cages of prison whilst those that set the
traps and catch them wax fat and shine.
And as soon as a boy or a girl begins to earn wages the Evil One, in the
shape of some kind of tally-man, is at his or her elbow with a watch, or a
ring, or a family Bible, or a musical instrument, or a shoddy sewing
machine, the possession of which can be gloriously enjoyed on payment of
the first instalment. I do not say that boys and girls must not buy their
experience of the world and pay for it, but the law need not assist the
knave in making it more expensive than is necessary. I have known several
cases of young servants leaving good places and running off in terror
because they have been served with a blue paper, "frightener" with a lot
of law jargon about imprisonment upon it, threatening them with dire
penalties because an instalment was due on a gold ring. More might
certainly be done to prevent back-door trading, and there is no more
reason why area touts should be allowed to infest the streets than the
lower class of bookmakers. Well-to-do people have very little idea of the
number of firms that employ travelling canvassers and touts to hawk their
wares from door to door in the mean streets.
I remember once a fairly well-to-do working man--he was the doorkeeper of
a public institution in Manchester--had an action brought against him by a
street tout because his dog, an Airedale terrier, had bitten the prowling
fellow as he was coming in at the back door. The man was badly mauled, and
the dog having been proved to have bitten several other people of a like
nature, I had, much to my discontent, to give judgment for the plaintiff.
About a year afterwards--having forgotten all about the matter--I was
visiting the institution where the defendant was employed, when, as the
gentleman I wished to see was engaged, the doorkeeper asked me to step
into his lodge and sit down and wait.
"I've often wanted to see you, Mr. Porry," he began, "about that there
dorg case."
"What case was that?" I asked.
"That case where you fined me five pounds over an Airedale what tried to
gobble up a tally-man."
"I remember," I said doubtfully.
"Well," he continued, "you seemed to sympathise with me like, but you
found against me. You see I had bought that dorg for the very purpose of
keeping those fellows off the premises whilst I'm away. So I said if the
law don't let 'im bite 'em, what's the use of the dorg? and what I wanted
to arsk you was, may my dorg bite 'em within reason or did I 'ave to pay
five pounds 'cause 'e mauled 'im too much?"
I explained the law in relation to dogs and tally-men as well as I could,
and my friend was good enough to say when I had finished:
"Well, I quite see you 'ad to make me pay as the law stands, but it don't
seem to me just. If you can't 'ave a dorg, how can you keep them fellows
out of the house?"
That was more than I could answer. We parted friends--and there was, I
think, a mutual feeling between us that the law of dogs in relation to
tally-men was not all it should be.
And many laws that are made for the best purposes are wrested from their
beneficent uses by the wicked ones of the world and turned to the basest
advantages. No legislation was hailed with greater delight by social
reformers than the Married Women's Property Act, and yet one must admit
that the fraudulent use of its provisions is a commonplace. I am not
suggesting that it is mainly against the poor that it is misused, though I
have known of cases under the Workmen's Compensation Act where goods were
alleged to be "in the wife's name" after an award had been made against
the husband, and many a poor tradesman and small worker is swindled by
this allegation, the victim not having the money to test it in a court of
law, and the result being in any case so gloriously uncertain. I am sorry
to put matrimony among the flat-traps, but the use of the married status
among the dishonest to prevent a successful litigant from obtaining the
results of a judgment brings it within this category. Even the poorer
classes themselves are beginning to make use of it as a kind of homestead
law to protect their goods from execution.
Much as I am in favour of seeing the poor man's home protected to a larger
degree than it is at present I do not care to see it achieved at the
expense of the character of the occupants. Any law that is a constant
temptation to dishonesty is an evil, and there is no doubt that when the
day comes for legal reform on a large scale, the various questions
relating to the position of the married woman in the eye of the law will
have to be considered. In many cases, of course, the reforms will be
towards the enlargement of women's liberty, but in the matter of holding
property it is clear that where a wife or a husband is tacitly allowing
credit to be obtained on his or her appearance of property that property
should be available to discharge the debt notwithstanding that it is
claimed as the special property of one or the other.
Menander, the Greek poet, in one of his comedies makes someone say, "To
marry a wife, if we regard the truth, is an evil, but it is a necessary
evil." If this was true in 300 B.C. it became more convincingly the truth
in 1882 A.D., when the Married Women's Property Act became law, and the
"peculiar gift of heaven" was welcomed by the unscrupulous trader as a
statutory stay of execution. Since that day the Micawbers of this world
have put all their available assets "in the wife's name."
The legal privileges of the married woman are not sufficiently well known.
Like "the infant" she is, indeed, the darling of the law. What a fine
commercial spree an "infant" could have who looked older than his years
and had an elementary knowledge of the law of "infants"! Luckily they do
not teach anything useful at educational establishments, and the "infant"
never learns about his glorious legal status until it is too late to
exploit it.
But a married woman can, and does, have a real good time at the expense of
her own particular tyrant, man. Recently at Quarter Sessions a man was
accused of stealing the spoons, and his wife was accused of receiving the
property knowing it to have been stolen. But it was pointed out that it
was one of the rights of a married woman to receive whatever her husband
happened to bring home, and the judge directed an acquittal.
There are several pretty little distinctions in the criminal law in favour
of the married lady, but perhaps it is not seemly to advertise them
overmuch. When we come to so-called civil matters, the lady who does not
know and exercise her legal privileges is indeed a _rara avis_. How many
of the debt-collecting cases in the County Court are concerned with the
good lady who runs into debt with the tally-man or other tradesman to the
husband unknown? True, in many of these the husband has a possible
defence, but the good man is generally a sporting, careless fellow, and
pays his five shillings a month in the belief that debt is a natural
sequence of matrimony.
But when it comes to committing wrongs--or torts, to use the Norman slang
of the law--the married woman is the only legal personality that is
privileged to forget her duty to her neighbour at someone else's expense.
Her unhappy husband is always liable for the damages and costs, although
he may have done his best to hinder the wrong that has been done. If in
his absence on the daily round the good lady slanders her neighbour's
wife, or trespasses on her neighbour's garden to commit the further wrong
of slapping her neighbour's infant, the husband, for the purposes of
paying damages, is regarded by the law as being a joint offender. The law
supposes that a wife acts under her husband's directions. When they told
Mr. Bumble that, he replied in the immortal phrase, "If the law supposes
that, the law is a ass--a idiot. If that's the eye of the law, the law's a
bachelor; and the worst I wish the law is, that his eye may be opened by
experience--by experience."
It does seem a bit hard on the poor man certainly. If he keeps a dog the
animal may have his first bite at his neighbour free of expense, and when
he gets to hear about it he can send the dog away. But with a wife there
is no question of _scienter_. You may not suspect that your good lady is
given to slander, assault and such like indiscretions, but, if it so
happens, you have to pay. Nor do I see what steps you can take to hinder
the lady from trespasses which she has the mind to commit. For if you were
to place her under lock and key I believe a sentimental High Court judge
would grant her a _habeas corpus_ that she might go out again into the
wide, wide world and exercise her undoubted right of committing wrong at
her husband's expense.
And I set down these disadvantages of husbandry as some sort of excuse for
the meanness and dishonesty of the man who uses "his wife's name" to
protect his assets and injure his creditors. I have in my mind a
commercial married man auditing in his debit and credit mind the
matrimonial balance sheet. "See," he says, "my liabilities under the law
of husband and wife. Surely there must be some assets of the relationship
in which I am entitled to participate!" Then he studies the Married
Women's Property Act, and chuckles. Whether this is so or not, there is no
doubt that, since the Act of 1882, "Everybody's doing it," and when the
bailiffs come in the furniture and the stock-in-trade are always found to
be "in the wife's name." It is a form of conspiracy, you would say, and
the police should put a stop to it, but "Old Father Antic the Law" has
his answer for you there--a wife cannot be guilty of conspiracy with her
husband, for husband and wife are one.
There was a story illustrating the prevalence of this custom in the
precincts of Strangeways, Manchester. Mr. Isaacs, who had been absent from
business for some time, returned to his workshop looking pale and white
and very weak. A sympathetic neighbour put his head in at the door, and,
full of pity, said:
"Dear me, dear me, you look very ill, mine friend. Vot is the matter with
you?"
"Ach," groaned Isaacs, "I have had a terrible time, a shocking bad time."
"Vot vas it all about?"
"I vill tell you," replied Isaacs. "The veek before last two doctors came
to mine house and took avay mine appendix."
"Bah!" muttered his friend contemptuously. "I vonder at you. That vos all
you own fault: you should have put it in the vife's name. Then they could
not touch it."
The story might be told in a Scot's accent, or even a Welsh one for that
matter, and it would represent with equal truth the prevalent outlook of
mankind on the commercial advantages of matrimony. I by no means desire to
suggest that "the wife's name" is made a baser use of by the eastern
communities of Strangeways and Whitechapel than among the fair-haired
Saxons of Surbiton and Chorlton-cum-Hardy.
There are many people who see no wrong in doing what is within the law,
and there has always been a human tendency to score off one's brother man
by a smart trick since the days of Jacob and Esau. The fool will always be
outwitted by the discreet ones of the world, who justify their ways by
reminding us that we are only bound to obey the letter of the law, and
that there is no duty cast upon us to interpret and respect its spirit.
And simple charitable folk will say that after all things may really be
quite honest and straightforward, and it is only the stingy creditor who
sees fraud and the ungenerous judicial mind that finds in the constant
repetitions of a series of happenings an intention in the parties to whom
the events occur to wrong their neighbours.
For why should not John Smith put over the door of his shop "J. Smith,"
and how can the pleasant, careless fellow pay his debts in these bad
times, and why do those wholesale curmudgeons press for their money and
weary of John's winning smile and dangling tales of future payment? If
creditors won't wait it is really very foolish in these days to sue for
the money and put the bailiffs in. For friend John is away at the races
and when they come and seize the stock and effects of "J. Smith" there is
Mrs. Smith, dear, good lady, to whom of course everyone knows, or ought to
know, the business belongs.
Is not she a married woman? Cannot she trade in her own name? Is not her
name over the door--well, not her name exactly, but her initial--her full
name is Jane Smith--and as for her husband, he has never been anything
but a servant of hers, and now she is going to run the business herself!
In due course of evolution, no doubt, we shall breed this dishonesty out
of the race, or else the kind of poor, simple tradesman who gives credit
without inquiry will become extinct.
At present there are quite a number of people who regard laws not so much
as guides to good conduct, but as difficulties to be overcome in the
obstacle race of life. A learned king's counsel, a well-known expert in
bankruptcy and bills of sale, told me of an interview he had with a
secretary of a social society who came to ask him to deliver a lecture.
The secretary explained that their members were mostly cabinet makers and
small furniture dealers, and they had a meeting and a discussion every
month. The king's counsel agreed to come, and asked what sort of subject
they would like him to speak about.
"Well," said the secretary, "our president, Mr. X----, you may know
him----"
The king's counsel shook his head.
"Well, he has been bankrupt twice--I thought you might have met him. He
proposed a very good subject, and the committee were quite pleased with
it."
"And what did he suggest?"
"Well, seeing we are nearly all interested in the furniture trade, he
thought there would be a good turn up if you would come and lecture on the
Bills of Sale Acts and how to avoid them."
And I suppose a brainy man, with a good wife, and, what is almost as rare
nowadays, a good bill of sale, can live on nothing for about as long as it
can be done.
That candid poet, Arthur Hugh Clough, pointed out many years ago that the
ancient decalogue did not cover all our sinful modern ways, and amended
the eighth to run thus:
Thou shalt not steal; an empty feat
When it's so lucrative to cheat.
And surely we may ask, Why should this miserable cheat flourish among
decent citizens of to-day? Should not a man or woman be made to trade in
his or her own name? In a business community it is almost impossible to
make adequate inquiries before you start trading, and why, if you come to
think of it, should an individual desire to trade in any but his own name?
The frauds that are committed may not be very serious, but all forms of
cheating and sharp dealing are detrimental to trade, and trade, after all,
is the basis of our national pre-eminence. It seems particularly
undesirable in a nation that prides itself on its domestic purity that
"the wife's name" should be a symbol of dishonesty. If we cannot attain to
a decent code of commercial morality without it we shall have to ask our
four-hundred-pound legislators for yet another statute. "One man, one
name, and make him trade in it," would be well received by all the honest,
rich and poor, throughout the country.
I have dealt at some length with this question of putting goods in the
wife's name because I doubt if folk whose business does not take them into
the County Court have any idea how prevalent it is and what a very
present help it is to the man who is living upon his neighbours by some
semi-fraudulent business. Every now and then the setter of flat-traps
catches a victim too strong and lusty to remain in the trap. The shoddy
gold watch is returned, the bogus business is thrown back on the
exploiter's hands, the company promoter who has annexed the savings of the
victim by false promises is sued for damages for deceit. In some of these
cases by pertinacity and the spending of more money a triumphant judgment
will be obtained by the fly against the spider. But there it ends. When
the high bailiff visits the web he is politely informed that it is part of
the wife's separate estate, every thread in the web is covered by a bill
of sale, and if you try to imprison the old spider for debt you would find
the greatest difficulty in proving his means to the satisfaction of the
Court. Bankruptcy has no terrors for the old fellow. You will probably
find that he has been there before and rather likes its old-world dusty
crannies and the peaceable formulæ of its schedules and accounts.
No doubt it is very difficult to draft laws that the wicked cannot wrest
from their righteous purpose and use for iniquity. But the law plays into
the hands of the knave by its verbosity and diffuseness and the great mass
and complexity of it, which the knave studies with as great care and
astuteness as the lawyers and judges whose duty it is, within the four
corners of the law, to prevent his wrongdoing. When it is enacted "Thou
shalt not steal," the Court knows where it stands, but that is a far more
easy statute to construe than anything the parliamentary draftsman turns
out to-day. If we could get a short statute of one clause, "Thou shalt not
cheat," with an appropriate schedule containing a tariff of fines and
imprisonment, I think magistrates could do a good deal to cleanse the
cities of a great many low ruffians who make their living by swindling the
poor and make the law as it stands their attorney to collect the spoils.
CHAPTER IX
POVERTY AND PROCEDURE
Therefore I counsel you, ye rich, have pity on the poor.
Though ye be mighty at the law be ye meek in your deeds.
The same measure ye mete wrong or right
Ye shall be weighed therewith when ye go home.
* * * * *
To the poor the Courts are a maze if he plead there all his life,
Law is so lordly and loth to end his case;
Without money paid in presents Law listeneth to few.
PIERS PLOWMAN.
We have moved along a little since the days of Edward III., and if Piers
Plowman were with us to-day he would see no visions of "money paid in
presents" to State servants, at all events not to the judiciary. Bacon was
the last Lord Chancellor who indulged this evil habit, and if, as his
admirers tell us, he was at the time producing his own plays on sharing
terms with impecunious actors, one can understand the necessity of it
whilst condemning the practice. Although we have made justice pure enough
in this country and not directly purchasable, yet the rest of Piers
Plowman's indictment is true enough of the present time, and law is still
a maze wherein the rich are guided by the clever ones who know the way
and the poor too often get lost for want of an honest guide.
There are many signs that the public conscience is being slowly awakened
to the iniquity of one side in a law suit having all the legal aid that
money can buy and the other side nothing. In criminal cases something is
already done and a beginning is being made on the civil side in the High
Court to give the poor legal aid. These reforms do not amount to very much
as yet, but they are the first steps towards remedying Piers Plowman's
grievances and, considering that it is less than six hundred years since
that excellent visionary made his moan over the law and the poor, and the
drawback poverty has in the procedure of the Courts, there seems to have
been no very unusual delay in Government taking the matter up. We may at
least congratulate ourselves that we have got a scheme of some sort which
can be amended and put into a business shape instead of the Select
Commission which reformers are generally offered to keep them quiet. Old
Piers would be awfully happy--"bucked," I think, is the modern word--if he
could know that after five hundred and fifty years we were tackling the
problems of life that worried him so greatly. In another six hundred years
or so a lot of the little matters referred to in this book will get
smoothed out. If you can get into the habit of thinking of the world's
progress in centuries instead of months you will find it very comforting.
Until more is known of these new schemes and their workings we must write
of the present system as we know it, for any change in it will certainly
be slow enough and it is something to understand the circumstances of the
present in order to see what changes are really required.
You may remember that George Eliot in "The Mill on the Floss" describes
Mr. Tulliver as saying, "that in law the ends of justice could only be
achieved by employing a stronger knave to frustrate a weaker. Law was a
sort of cock-fight in which it was the business of injured honesty to get
a game bird with the best pluck and the strongest spurs."
I do not say for a moment that Mr. Tulliver was right, but I think George
Eliot shrewdly described in his words the attitude of mind of the man in
the street towards the High Court of Justice. Cock-fighting was always a
popular, cruel, and exciting sport, and now that it is done away with the
next best thing is to squeeze into the Divorce Court and witness a real
set-to between Chanticleer, K.C., and young Cockerel, who, they say, will
be taking silk himself very soon and will knock the older bird out of the
ring.
Certain it is that the poor have a notion, in which there is doubtless
some truth, that the fact that the other side had a better and more
expensive counsellor gave them a greater chance in the legal lottery. The
side that can put Carson on to bowl at one end and F. E. Smith at the
other must start at a better price than the side which has to rely on an
unknown amateur in the back row. Of course, A. N. Other may take some
wickets, but the public have a very business-like belief that money talks,
and that the verdict of the jury, like most of the verdicts in life, will
turn out to be on the side which can put in the field the most expensive
team.
Certainly I can say without hesitation that working men would never have
got their due from the Workmen's Compensation Acts if each particular poor
workman had had to fight for his rights at his own expense. It is to the
trade unions and their co-operative litigation that the thanks of the
workmen are due for preserving their rights under the Act.
Mr. Lysons was a Pendleton collier, and had only worked for a few days
when he received an injury. This happened in 1901, and at that time the
old Act said that no compensation could be recovered until a man had been
off work for two weeks. It was argued before me that this being so, unless
a man was employed for more than fourteen days he could not come within
the Act at all. The argument did not appeal to me, but it did to the Court
of Appeal, and later on again it did not to the House of Lords. So the man
got his money.
But the point of the case is that had not the union come forward to take
his case to the House of Lords, Lysons would have lost his compensation,
and the Act of Parliament would have been construed to limit the rights of
the poor for all time.
This particular case cost the union six hundred pounds to fight, and the
point in dispute was whether the injured man was, or was not, to receive
six shillings a week for five weeks. Several cases have run the same
course. The Act is obscurely drafted and capable of many interpretations.
Some of these that still stand on the books remain precedents only because
the workman has not money enough to carry the case higher and has no union
behind him.
And, though in the first instance a workman might often make shift to
state his case in the County Court himself and rely on his own advocacy as
to the facts and the judge's knowledge of the law, it is absurd to suppose
he could argue a legal point in the Court of Appeal or House of Lords
without assistance. Unless a trade union is ready to take up the case, the
only hope of a man getting his rights is through the aid of a speculative
solicitor.
Such a system has its drawbacks to the litigant and the profession, and
leads to unpleasant and undesirable incidents, but it is no use shutting
one's eyes to what is going on every day in every Court. Dodson and Fogg
have always been looked down upon ever since Sam Weller gave them away by
blurting out in Court that it was "a wery gen'rous thing of them to have
taken up the case on spec. and to charge nothing at all for costs unless
they got them out of Mr. Pickwick."
No doubt it is very unprofessional to make such an agreement, but with the
law as it is, and the poor with rights under the law, how on earth are
they to get their rights unless there is a speculative solicitor ready to
risk a certain amount of out-of-pockets in the hope of getting them back
with advantages from Mr. Pickwick? Unless a speculative solicitor is ready
to back the poor man's case with gratuitous services and money enough for
counsel's honorarium, surveyor's plans, doctor's and Treasury fees, how
can the case be launched at all?
Indeed, could one be certain that such a solicitor never undertook any
case unless he was satisfied that his client had right on his side, should
we not have to admit that the speculative solicitor was a ministering
angel engaged in a practice of delivering the poor that cried, and the
fatherless, and him that had none to help him?
And as day by day the poor have more laws made to guide them into the way
of righteousness, and more statutes are passed with the intention of
making the life of the poor healthier, brighter, and better, and as,
moreover, in this imperfect world the servants of the Evil One are always
prowling round to cheat the poor of their rights, it would seem to follow
that if Law Courts and litigation are to be the order of the day we must
each of us have a panel lawyer to whom we can go when we want an
injunction and our _habeas corpus_ is not up to the mark.
For years and years there have been speculative doctors. No one thought
any the worse of doctors because they founded hospitals and gave their
services free of charge and entered a _caveat_ against disease and death
without first getting something on account of costs. And why should not we
have legal hospitals and out-patient departments attached to the County
Court where the house physician is the young man who has taken the best
degrees in law and the visiting surgeon is the great leader of the legal
profession?
The idea is no more ludicrous in one profession than it is in another.
Medicine has its noble traditions of charity. Why should not lawyers set
an example of self-sacrifice and unselfishness? Or is there some subtle
essence in the law that of necessity destroys the favourable microbes that
promote peace and goodwill among men?
We of the long robe of the Inns of Court have always held in theory that
we were there to take on the protection of any and every suitor. Please do
not think when your attorney asks you for counsel's fees that you are
hiring him by that golden nexus of guineas. By no means. No barrister can
stoop to take wages or salary. What you are giving him is a mere gratuity,
"which a barrister cannot demand without doing wrong to his reputation."
And, that being so, one might expect some of the wealthier Templars to
take the ideal of their profession at its face value and set up to advise
and plead for the poor not only without wronging their reputation by
demanding a gratuity, but by refusing to accept one.
In a recent case much was said of the noble attitude of Barrister A., who,
being a political opponent of Barrister B., appeared for him when he had
got into trouble--I use the phrase in no technical sense. Correspondence
ensued, and some enthusiasts for the honour of the profession said that
every barrister was bound to take up a case if it was offered him. I
wonder what would happen if Lazarus went knocking at the doors of Crown
Office Row and Pump Court with a claim against Dives, but without a
gratuity in his hand? Would he get anyone to advise him on evidence or
settle the indorsement on his writ? One never knows.
The atmosphere of our Courts is not all that it should be. I do not refer
to the physical fog which pervades them, the smells of which the electric
fans blow about the building in the sacred name of ventilation, but the
moral atmosphere of our Courts always seems to me to suggest that the law
is an appanage of the rich. By all means let us have dignity, decorum, and
distinctive dress, but if you go into the High Court, although you may
hear the affairs of the poor dealt with sympathetically and in a just
spirit, the atmosphere of the Court is well-to-do and prosperous. Everyone
connected with the duties seems to belong to the upper middle class. There
is no place at all for the working man to play his part except on occasion
in the jury box.
And then, if the claim is the claim of a poor man against a rich man, a
special jury is empanelled and you get at a greater cost a tribunal of the
defendant's own class to hold the scales of justice. And though I firmly
believe that all do their best, and that speaking generally justice is
well administered, yet I can quite understand the feeling of a poor man
entering a Court of Justice and finding that the judge who lays down the
law, the jury who decide the facts, the advocates who argue the case, and
the solicitors who instruct the advocates are all drawn from a class of
the community which the working man rightly or wrongly believes to be
hostile to his outlook on life.
If I have not made myself clear, imagine yourself bringing an action
against a trade union, and finding when you came into court that a
well-known ex-Labour M.P. was on the bench, that the jury were chosen
entirely from the working classes, and that you were only allowed to be
represented by a next friend chosen from the ranks of a particular trade
union.
Would you, under circumstances of this kind, even if you were convinced of
the honesty and sincerity of every portion of the tribunal, feel that
sense of security in its right decision which is so essential in a
community where law should be respected?
And that this is a real trouble and that the Courts are aware of its
existence was shown in a recent judgment of Lord Sumner in the Court of
Appeal. A learned judge in the Court below in correctly directing the jury
as to the effect of the Trades Disputes Act had "added some remarks
pointedly expressed which were indirectly a criticism of the Act and
substantially a statement to the jury that a person who availed himself of
the defence afforded by the Act was setting up a dishonest defence." These
remarks Lord Sumner described as "inopportune, detrimental to the
defendant's case and, perhaps worst of all, irrelevant." He concluded with
quaint sarcasm: "A judge in charging a jury could never safely indulge in
irrelevant observations because he could not be sure that the jury would
be sufficiently logical to take no notice of them." I intend asking the
Office of Works to have that painted up on the walls of my Court. It is
worthy of letters of gold. Irrelevancy is certainly the worst of sins and
it is a natural vice in most of us only to be kept down by prayer and
fasting from the practice of it. We all dislike some Act of Parliament;
the Insurance Act, the Ground Game Act, the Finance Act--none is so
perfect that it has not some judicial enemies. And it is certainly very
tempting when you meet the fellow in Court to give him a bit of your mind.
But it must not be. The Legislature is our schoolmaster. Outside in the
playground and on vacation we can express our opinions about him freely,
but in school--No!
Lord Sumner is perfectly right and when he next speaks on this subject I
wish he would point out with authority that this human habit of
irrelevancy is the constitutional reason for maintaining the grand jury.
For centuries the King's Bench judges have worked off their natural
irrelevancy in charging the grand juries at assize towns to the great
benefit of themselves and the local papers. This national safeguard, this
barrier between judicial irrelevancy and the public at large, should not
be removed in a careless spirit. Our forefathers knew a thing or two. The
grand jury is really a sound instrument of constitutional mechanics. It is
the safety valve for the blowing off of judicial steam.
Lawyers and judges are certainly held in higher esteem to-day than they
were in the past. Gulliver describing the contemporary lawyers to his
friend and master, the Houyhnhnm says: "there was a society of men among
us, bred up from their youth in the act of proving, by words multiplied
for the purpose, that white is black, and black is white, according as
they are paid. To this society all the rest of the people are slaves. For
example, if my neighbour has a mind to my cow, he has a lawyer to prove
that he ought to have my cow from me. I must then hire another to defend
my right, it being against all rules of law that any man should be allowed
to speak for himself." In another passage he inveighs against judges in a
strain of even coarser invective. "Now your honour is to know," he says,
"that these judges are persons appointed to decide all controversies of
property, as well as for the trials of criminals, and picked out from the
most dexterous lawyers, who have grown old or lazy; and having been
biassed all their lives against truth and equity, lie under such a fatal
necessity of favouring fraud, perjury, and oppression, that I have known
some of them refuse a large bribe from the side where justice lay, rather
than injure the faculty, by doing anything unbecoming their nature or
their office."
Even in 1727 the extravagance and exaggerations of these passages must
have diminished the force of the satire, but one must remember that under
the old forms of procedure and law of evidence all sorts and conditions of
chicanery were possible, and the search after truth was clogged and
hampered by technicalities that made for injustice.
Crabbe, in "The Borough," draws a picture of Swallow, the lawyer, "a hard,
bad man who preyed upon the weak," but he had sufficient insight into the
reality of things to see that:
Law was design'd to keep a state of peace;
To punish robbery, that wrong might cease;
To be impregnable; a constant fort,
To which the weak and injured might resort.
And the main reason that the law in old days failed in a great measure to
carry out its mission to protect the poor was the extraordinary mystery
and obscurity of it. Where law is a jargon of technicalities foreign to
the business ideas of the people an immoral man who is a lawyer has an
easy task before him to defraud the weak. In our own time the worst frauds
committed by lawyers have been mortgage frauds where the deeds were
deposited with solicitors who converted them to their own use. Our land
transfer system is a relic of the past; it is a mystery that no plain
citizen can comprehend. It is necessary for him to employ a lawyer to
carry out the smallest transfer of land and it is necessary for him to
rely on the statement that the land has been conveyed to him and that the
title deeds are in order. The technical obscurity of the transaction opens
the door to frauds that would be impossible with a modern, businesslike,
public land transfer department.
And as technicalities in law and procedure were gradually abolished so we
find the pictures of lawyers in contemporary fiction becoming less
ignoble, though there will always be more romance in the story of a
fraudulent lawyer leading a double life than in the career of a blameless
practitioner who serves his clients honourably during office hours and
returns punctually to his accustomed suburb at the appointed dinner hour.
Though we have done away with much legal fiction and cumbrous technicality
we cannot greatly boast of the simplicity of our legal procedure. Take the
County Court Practice for instance. Here is a Court primarily designed to
adjudicate on the simple disputes of poor people. There are two practice
books. They cost over a guinea apiece, they consist of hundreds of pages
and are absolutely incomprehensible except to the trained lawyer. This
being so it is clear that the lawyer is as necessary to the poor man as he
is to the rich. It is a sign of grace in the matter of procedure that
whilst this chapter is in the writing we have some new rules issued about
giving poor people assistance in High Court actions. Up to now the
procedure _in forma pauperis_ has not been of practical benefit to the
poor except in enabling an occasional important appeal to reach the House
of Lords. It is too soon to say whether these new rules will meet their
object. Shortly, the scheme is that a poor person--meaning one who can
satisfy the judge that he is not worth fifty pounds--will have counsel and
solicitor assigned to him from a rota. After that his case will be
conducted free of costs or fees. If he succeeds the solicitor--but in no
case the counsel--will get costs.
Much depends of course on the spirit in which this is worked, but it only
refers to the High Court--which is not, speaking generally, the poor man's
Court--and it seems unlikely on the face of it that a scheme of this
kind, with no one in particular to look after it and advertise its
existence, will do away with the undesirable activity of the speculative
solicitor. One wishes it well, but except perhaps in relation to divorce
cases it does not appear on paper to be of great practical use.
The fact is that it is not a very hopeful thing to go to lawyers and
committees of lawyers for reforms unless you have the driving power of the
business man behind them. Nothing was to be more disastrous according to
legal prophecy than the institution of the Public Trustee. No reform has
done more to mitigate domestic worries and anxiety than this beneficent
institution. Lawyers and laymen nowadays concur in casting their troubles
upon him and sheltering themselves and their clients beneath his
protecting wing. If we are ever to have a proper system of legal advice
for the poor it will, I think, have to be made an official department with
a business head of affairs and attached lawyers. It might perhaps be added
to the duties of Labour Exchanges, but in any case it should be a
department of the Board of Trade, and it should have branches throughout
the country and power to help the poor in all the Courts of the country. A
device for suing _in forma pauperis_ working only in London, such as is
set up by the new rules, cannot be of much avail in tackling the problem
of placing legal advice and assistance at the call of the poor.
I wish some experiments of a voluntary nature could be made of a more
extended character than the poor man's lawyer societies that are attached
to University settlements, and do good work in advising the poor. It is
really in Court that a poor man wants assistance. I often think that a
poor man or woman coming into a Court for the first time is like the
average middle-class Englishman when he finds himself on Calais Pier
without a word of French speech at his command and entire ignorance of the
ways of the _douane_. How he clings to a friendly interpreter with a gold
band round his hat. How extravagantly he rewards him when he and all his
luggage are at length safely in the train.
And why should not we encourage an amateur legal interpreter in our County
Courts just as we welcome missionaries in our police Courts. I should like
to see practising in each Court an official friend of the poor, ready to
state the case of a poor man or woman who sought his assistance. There is
an existing section of the County Courts Act allowing a friend to appear
for anyone by leave of the judge if he does not do it for fee or reward,
and on that foundation something might be built.
I remember a clergyman, Father Gething, appearing for an old army
pensioner against an insurance society with complicated rules, and asking
to be allowed to address me, and conduct the old man's case. Sir William
Cobbett, not having in his mind for the moment the section I refer to,
objected. I asked Father Gething whether he was going to recover any "fee
or reward" for acting in the case.
"Certainly not," replied the reverend gentleman.
"But perhaps," I continued--somewhat mischievously--"Sir William is going
to contend that the word 'reward' in the statute means not only reward in
this world, but the next."
Sir William smiled and shook his head at me in dignified reproof. He was
not going to argue this, and with his very good will and assistance the
clergyman conducted the case, and in the end secured a victory.
In the Army Courts-Martial a prisoner is always allowed a friend to advise
him and to take a limited part in the proceedings, and I cannot help
thinking that long before the poor man has his panel lawyer voluntary
charity will be allowed to supply him with a "friend," who shall be
trained in the law, but ready to give his services to the poor without fee
or reward.
Many will think that the suggestions that I have sketched out of
assistance to poor people are chimerical and that in any case they are
likely to be costly and that the grievance, such as it is, is not worth
the money to be spent on the remedy. At one time I seem to be calling out
for no lawyers and here I am demanding more lawyers. The inconsistency is
only apparent. In all legal reforms I place in the forefront conciliation.
I want to see the French "preliminary of conciliation" applied without
delay to all small cases and I want the judge of the County Court to be
clothed with the duty of the French _juge de paix_, whose business it is,
in the first instance, to bring the parties together and get them to shake
hands. Only when that fails, or in those cases where litigation is
essential and necessary to the proper determination of a real dispute,
should I ask the State to assign counsel and solicitor to the poor. If a
poor man has an honest suit with a rich man it should be a point of honour
with the Courts to see that he is not at a disadvantage in their
procedure.
But merely providing a poor man with lawyers will not alone work the
miracle. Money must be found to pay his witnesses and prepare his case,
and this is even more necessary in civil cases than in the defence of
prisoners where, as we shall see when we come to consider criminal
matters, the State, whilst providing legal aid, has stopped short of
providing what may be still more necessary, financial assistance for
necessary evidence, some of which may be of an expert and expensive
character wholly out of reach of a poor man.
Piers Plowman naturally threw the whole blame on the lawyers who went
about, as he said:
Pleading the Law, for pennies and for pounds,
Unlocking their lips never for love of our Lord.
But I cannot for myself see why a lawyer or a doctor should work for
nothing any more than a business man or an author, and, if we knew the
truth, I expect we should find that old Piers himself invented his vision
as much in the blessed hope of royalties as "for the love of our Lord."
I do not want charity for the poor in our legal procedure, nor do I wish
to see litigation multiplied by cheap remedies. On the contrary, I want
every effort made to cut down litigation to a minimum, but when a lawsuit
takes place I want it to be a fair fight and no favour, with each side
equally well equipped for the fray.
CHAPTER X
CRIME AND PUNISHMENT
The penal laws of the British Empire are, by foreign writers, charged
with being too sanguinary in the cases of lesser offences. They hold
that the punishment of death ought to be inflicted only for crimes of
the highest magnitude; and philanthropists of our own nation have
accorded with their opinion. Such persons as have had no opportunity
of inquiring into the subject will hardly credit the assertion that
there are above one hundred and sixty offences punished by death, or,
as it is denominated, without benefit of clergy.
ANTHONY KNAPP and WILLIAM BALDWIN:
Preface to "The Newgate Calendar," 1824.
The progress we have made in the reform of criminal law in the last
hundred years is really remarkable. In very recent days we have at last
allowed the prisoner to give his evidence of the matter he is charged with
if he desires to do so. We have, under certain restricted conditions,
supplied him with legal assistance, and, best of all, there is at length a
Court of Criminal Appeal.
It is interesting and encouraging when your mind has a bent towards legal
reform to see how past reforms have come about. As recently as 1826
prisoners accused of felony were not allowed counsel, and the Rev. Sydney
Smith, who had a winning way of stating the case of the Law and the Poor
in his own day, was pleading in the _Edinburgh Review_ for a reform of
this matter. One would have thought then, as one often thinks now, that a
mere statement of the issue would have been sufficient. This is a picture
of things as they were. "There are seventy or eighty prisoners to be tried
for various offences at the Assizes who have lain in prison for some
months; and fifty of whom, perhaps, are of the lowest order of the people,
without friends in any better condition than themselves, and without one
single penny to employ in their defence. How are they to obtain witnesses?
No attorney can be employed--no subpoena can be taken out; the witnesses
are fifty miles off perhaps--totally uninstructed--living from hand to
mouth--utterly unable to give up their daily occupation to pay for their
journey, or for their support when arrived at the town of trial--and if
they could get there, not knowing where to go or what to do. It is
impossible but that a human being in such a helpless situation must be
found guilty; for as he cannot give evidence for himself, and has not a
penny to fetch those who can give it for him, any story told against him
must be taken for true (however false) since it is impossible for the poor
wretch to contradict it."
And yet, absurd as it seems to us to-day, the prisoner's right to counsel
was not obtained without a severe struggle. At the back of the mind of
those who opposed the reform was the idea that as prisoners were accused
by the Crown it was an act of disloyalty to defend them. Ridiculous as
that idea is it still exists in a form that is interesting only as showing
that the tradition was once a reality. A King's counsel has to obtain
leave from the authorities, and pay a small tribute therefore, before he
can appear for a prisoner and against the Crown. Leave is never refused,
but the existence of such a curious custom is only comprehensible by
studying the folklore of the subject.
A hundred years ago this folly sanctioned by antiquity was a reality. The
defenders of the position said it was really all done in the interests of
the prisoner. His witnesses were not put on oath, and this allowed them to
tell any falsehood they wished; he was saved the expense of his
counsel--as though he preferred economy to hanging--and the judge, he was
told, was his counsel--an arrangement that the prisoner cannot have been
very grateful for when he heard his counsel on the bench summing up to the
jury for a conviction. The nonsense that was talked and written on this
subject is encouraging to those who want things done to-day. Against all
reforms, arguments of this kind have to be listened to and laughed out of
Court, but to-day we are in a better position than Sydney Smith was, for
we often find in the official world a human being ready to help on a
reform when the time is ripe for it. In his day common-sense and common
humanity had not permeated into Government offices, "the Attorney-General
and the Solicitor-General for the time being always protesting against
each alteration and regularly and officially prophesying the utter
destruction of the whole jurisprudence of Great Britain." It was not until
ten years after the _Edinburgh Review_ article was written that
Parliament in August, 1836, passed an Act to permit prisoners charged with
felony the right to be defended by counsel. And yet there are many people
who think we move too fast in necessary reforms.
Sydney Smith mentions as one of the injustices to the prisoner his
inability to give evidence. This remained a disability until our own time
and was only removed with great difficulty and against the advice of many
learned lawyers. The folklore of the subject is quite entertaining. Our
ancestors considered, from introspective knowledge of themselves and their
neighbours, that no one with any interest in a dispute was likely to speak
the truth about it, they therefore did not allow the parties to a suit to
give any evidence at all. This was the old law in both civil and criminal
cases. Thus you may remember that in the great case of _Bardell_ v.
_Pickwick_ neither plaintiff nor defendant gives evidence, because in law
at that date they were not competent witnesses. The inconveniences of this
in civil matters was patent to everyone but the lawyers. Writing on the
incompetency of witnesses to give evidence, Bentham said with some humour,
"in the bosom of his family the lawyer by the force of good sense returns
to the simple method from which he is led astray at the bar by the folly
of his learning. No one is so deeply tainted with his judicial practice as
to apply its rules to his domestic affairs. If you would represent
madness--but a madness where all is melancholy and unintelligible--you
have only to imagine an English barrister carrying into ordinary life the
fictions, the rules, and the logic of the bar." Certainly we cannot
believe that when Sergeant Snubbin returned to his house and found a
dispute raging between his cook and his butler that he tried to find out
the truth about it without hearing what either of them had to say.
In 1846 when County Courts were established, the parties and their wives
were allowed to give evidence, and so obvious were the advantages of this
that in 1851 Lord Brougham passed the Evidence Amendment Act extending the
system to other Courts. The only thing that surprises us to-day is that
there could ever have been any question about the necessity of allowing
parties to give evidence if it was really desired that they should have
justice.
But we still clung to the right of the prisoner to keep his mouth shut,
and in our insular way boasted of his privilege. Thackeray is horrified by
the examination of the prisoner in the ordinary French way. "In England,
thank heaven, the law is more wise and merciful!" He sees in the French
Government advocate an official seeking in every way to draw confessions
from the prisoner to perplex and confound him and to do away with any
effect that his testimony might have on the jury, and he thanks heaven
openly that we should "never have acted as these Frenchmen have done."
What really troubled Thackeray's patriotic mind was the indecency of
asking the prisoner any question at all. Victorian Englishmen of all
grades were peculiarly proud of our criminal administration of justice and
considered the privilege of the prisoner to keep his mouth shut was the
keystone of the edifice.
Dickens approached the matter more hesitatingly: "I wonder," he writes,
"why I feel a glow of complacency in a court of justice, when I hear the
learned judges taking uncommon pains to prevent the prisoner from letting
out the truth. If the object of the trial be to discover the truth,
perhaps it might be as edifying to hear it even from the prisoner, as to
hear what is unquestionably not the truth from the prisoner's advocate. I
wonder why I say, in a flushed and rapturous manner, that it would be
'un-English' to examine the prisoner. I suppose that with common fairness
it would be next to impossible to confuse him unless he lied; and if he
did lie I suppose he could hardly be brought to confusion too soon."
This being the Victorian attitude in the matter it was hardly to be
wondered at that the reform was delayed until our own day. Yet I doubt if
anyone conversant with the criminal Courts would doubt that although there
are cases where it has been to the disadvantage of the guilty to go into
the witness box, it has been of enormous value to the innocent that he can
give his own account of things to the jury.
There are three recent Acts of criminal law reform which have done much to
safeguard the interests of innocent men, especially if they are poor.
These are the Criminal Evidence Act, 1898, the Poor Prisoners Defence Act,
1903, and the Court of Criminal Appeal Act, 1907. If we could have such an
outburst of legal reform every ten years in other subjects we should be
doing well. But it must not be thought that these reforms were obtained
without trouble. Each was strenuously fought, year by year, for many many
years before the energy and patience of the reformers were crowned with
success.
One would have thought that the claim of a citizen, charged with a
criminal offence, to give his account of the affair to the jury, if he
wished to do so, was one of those matters of elementary justice that could
hardly be contended against at the end of the nineteenth century, but the
fight against this privilege was really a very strenuous one. Twenty years
before the reform actually came the Bill had been read a second time in
the House of Commons by a majority of 109, showing, at all events, that
the lay mind of the country had no doubt about what should be done. In
each succeeding year, when any new offence was created by Act of
Parliament, there was a special clause put in to enable a prisoner to give
evidence, so that at length there were some thirty or more Acts giving a
prisoner the right to give evidence. This made the state of the law, as
Lord Herschell said, "utterly indefensible and ridiculous." We were living
under two competing systems, whose constant absurdities were made manifest
in the Courts; thus, if a man was charged with forging a trade mark he was
a competent witness, if he was charged with any other forgery his mouth
was closed.
Curiously enough, owing to the irony of our party system, it was the
Conservatives who brought in this reform and the Radicals who opposed it.
It was left for Sir Richard Webster to point to the progress of all the
States of America, and the experience of our Colonies, and to ask that we
should not lag behind in the good work of reform. That sturdy radical, Mr.
Pickersgill, was shocked, and elaborated the quaint argument that an
innocent man should be debarred this privilege lest he might be an
ignorant person who would tell lies, and get confused and muddled, thereby
prejudicing his chance of acquittal.
A large body of influential legal opinion was adverse to the Bill, and in
the division lists voting against the reform you find the names of Sam
Evans, John Morley, W. S. Robson, Lawson Walton, and other well-known
Liberals. It is one of the crosses that a legal reformer has to bear that
only through the services of one or other of the great parties in the
State can he hope to see his pet dream materialise and there seems a
certainty that, if one party is converted to a proposal, the other party
makes a point of being diverted by it. Over and above that unhappy
difficulty to progress there is the certainty that the lawyers, as a
profession, will always offer a strong opposition to any proposition of
legal reform, and, when this is defeated, will fight strenuous little
rearguard actions to cripple and delay it.
The Poor Prisoners Defence Act met with less opposition. It was a
comparatively small affair, and there were a few fees in it. Mr. Justice
Grantham--whose merits as a friend of the prisoner and a humane judge are
often lost sight of in remembering his daring dives from the bench into
the sea of politics--this good judge was a keen supporter of the movement
for the better defence of poor prisoners. He thought the magistrates ought
to ask the prisoner what his defence was, and tell him that, if he would
state it, they would do all they could to assist him in proving it, and
that, if he wanted evidence, they would adjourn the case and get evidence.
His ideal was that the magistrate and the police should assist a man to
prove his innocence, and that any sort of reasonable defence should be
followed up at the public expense.
The letter of the Act, however, only gives the poor prisoner a solicitor
and counsel and a copy of the depositions. No doubt the best is done for
him that can be under these conditions, but it is not the same quality of
legal defence that a rich prisoner can obtain for money. Naturally,
counsel who take these cases are not men of the greatest experience, and
the defending of prisoners is a difficult branch of the act of advocacy. A
story is told of a Scotch prisoner, who had economically pretended he was
without means in order to save counsel's fees, calling out in agony as he
heard his defender addressing the jury in a very unconvincing manner:
"Young mon, if ye'll sit doon at once I'll give ye a feeve poun' note."
Although the Act is not everything it might be, yet, undoubtedly, it is a
move in the right direction and capable, under sympathetic administration,
of doing much good.
The Criminal Appeal Act of 1907 has proved itself of such value already
that it becomes the more amazing to read of the difficulty experienced in
getting it on the Statute Book. All manner of legal interests were banded
together against it. One of the two learned king's counsel who moved its
rejection in the House of Commons solemnly declared that the cost of
taking shorthand notes and the expense of bringing a prisoner to London
from the north of England appalled him and, in his view, "the machinery of
the Bill must inevitably break down ... it was absolutely unworkable." The
second uttered mournful prophecies of ruin: "to substitute," he said,
"this most costly machinery for the present system would deprive our
criminal Courts of their principal glory in the deep sense of care,
caution, and responsibility which was pervading the atmosphere of every
criminal Court in the country at the present time."
Many people seemed to think that juries knowing there was an appeal would
take less pains and care in their duties. But a jury in a criminal case is
a body of citizens called together on a special and solemn occasion to do
a serious duty and the fact of appeal or no appeal would have little
effect on their conduct. It was the slackness of some of the judges rather
than the possible carelessness of juries that wanted looking to,
especially in Courts of country Quarter Sessions where the shorthand
writer and the Court of Criminal Appeal were bound to exercise a good
influence. Nothing tends to good judicial work more certainly than
publicity, a shorthand note, and a strong Court of Appeal easily
available.
Although the criminal law has in the main been fairly administered and
equally enforced against rich and poor there are certain classes of laws
which have often, no doubt from worthy motives, been used as engines of
oppression against the poor. Of these the Blasphemy Laws are a standing
example. Dr. Johnson tells us that: "Laws are formed by the manners and
exigencies of particular times and it is but accidental that they last
longer than their causes." This is not altogether true. The fact is we
have no summary machinery for removing decayed and obsolete laws from the
Statute book. We want a legal lethal chamber for these old die-hards,
these laws against Sabbath Breaking and Blasphemy and other old world
wickednesses. A rich man may break as many Sabbaths and blaspheme at his
will but he is never prosecuted for it. In the days of that great and good
reformer, Charles Bradlaugh, the Blasphemy Laws were made use of to stifle
the poor in the expression of their opinions in a very shameless way. Only
last year a man was imprisoned under them in circumstances which gave rise
to a good deal of uneasiness. He was no doubt an ill-mannered and
unpleasant person, but ill manners and unpleasantness are not crimes, and
to make use of these old Blasphemy Laws, to lock up the poor blasphemer
only, is one of those things that does extensive harm by giving the
blasphemer new fuel for his blasphemy, not only against the sacred things
he does not appreciate, but also against the law which he finds ready to
do injustice for the protection of these holy mysteries.
This again, like many of the things which we may reasonably complain
about in what is, as the world goes, a humane criminal law, is one of the
matters handed down by our forefathers which we have not had time to set
right. In the old days Unitarians and others were burned alive. Fuller in
his Church History says: it was found that "such burning of heretics much
startled common people, pitying all in pain and prone to asperse justice
itself with cruelty because of the novelty and hideousness of this
punishment.... Wherefore King James politickly preferred that heretics
hereafter, though condemned, should silently and privately waste
themselves in prison." And that is what all heretics ought to do to-day if
the law were equally administered, but as a matter of fact these laws are
only put in force against poor, noisy people who preach their doctrines in
the market place, and are a dead letter against those who preach the same
doctrines on hand-made paper bound in morocco. I can quite believe that a
bye-law to hinder one man saying coarse and ill-mannered things about
another man's religion in open spaces might be a reasonable police
proposition; but there must be free trade in these things and the
Established Church must not have a preference. Moreover, such a law must
not be extended to pulpits or printing presses or much interesting
theological polemics would be lost to us. For the Blasphemy Laws in the
twentieth century, protecting only one form of religion and set in motion
only against the poor, nothing can be said. Foul language and obscenity
can and are punishable in other ways, and the cause of religion is poorly
served by being protected by laws which are only set in motion when the
well-to-do are annoyed by the vulgarity and ill-manners of the poor.
There is no gainsaying that once in the dock all men are equal or very
nearly so, but one may harbour a suspicion whether all men have equal
opportunities of getting there. Theoretically, the dock, like the Bench
and the Cabinet and all other British institutions, is approached by an
ever open door; but in practice more goats wander through the opening than
sheep. Yet your sheep is a born trespasser. There are some who believe
that his immunity from punishment is due to the wool on his back.
I doubt if this is altogether true. Crimes of violence and brutality are
naturally the crimes of the less fortunate of mankind, and your sheep is
more peaceably disposed than your goat. But when we come to the more
modern crime of swindling we find that the criminal law is not very
successful in punishing the fraudulent well-to-do. Fraud is a more
complicated offence than larceny, and defrauders sometimes get the better
of the law. Cheating is not always a crime, and successful cheating is a
question of better education. That is why the rich so often keep out of
the dock. The law is somewhat old and decrepit, and the modern well-to-do
swindler is very much up to date. Therefore I fear it is as true to-day as
it was in the days of Lord Chief Justice Coke, to say that the law "maketh
a net to catch little birds and letteth the great ones go."
If you cast your eye down the police news you will many times come upon
the case of a low-down man or woman who goes round collecting for a
mission that does not exist, thereby cheating the well-disposed of a few
pounds or shillings. It is quite right they should be run in and sent to
prison. They are pests stealing money that would otherwise relieve real
distress.
But if they had had a little more money, and hired a house in some remote
place, and kept half-a-dozen real orphans there, and called it The St.
Anonymous Orphanage, they might have collected as many thousands a year as
they liked for their excellent charity, and no one would have worried them
by asking how the orphans were looked after, nor would anyone have wanted
to know how much was spent on the orphanage and how much on the founder
and his family, and their houses and carriages and furniture and upkeep.
The poor orphan has many uses in the world. One of them is to enable the
swindler to found orphanages and make his living thereby.
At first blush the crime seems the same as that of the house-to-house
cadger who gets six months, but note that the uneducated man has told a
lie and made a false pretence of an existing fact. The good Founder of St.
Anonymous's never did that. He had an orphanage with real orphans in it.
True, there were not very many of them, and the orphanage was rather a
stuffy, insanitary sort of place, though photographed on end it looks
imposing enough. And that is the _mot juste_, as the French have it; that
is what the orphanage was, and what the good founder was--imposing.
If you tell no actual fibs the law does not mind you imposing as much as
you like. You may transfer the savings of the working class into your
pockets by promises of the wildest character and schemes of the silliest
and most romantic sort, and if you do it successfully enough the nearest
you will ever get to the dock will be a seat on the borough bench, from
which altitude you may sentence the poor, mean criminal who never had any
capital, and had no one to advise him as to the law of false pretences.
This is not a fancy picture. There was at least one such a magistrate on
the bench once, and for aught I know there may be some J.P.'s to-day whose
wealth has been made by stealing the savings of the working classes within
the law.
Certainly in this country we have been free from the subordination of the
Criminal Courts to the power of gold that is said to exist in other
civilised places. Any preferential treatment that exists is of a class
character--snobbish if you will, but not corrupt. As an Irish barrister
said to me at Liverpool--he was a great Home Ruler with a grand hatred of
England and a real affection for many Englishmen: "My dear Parry, you'll
never convince me that the Government ever meant to hang Mrs. Maybrick.
They're a cowardly lot of snobs, and anyhow they couldn't hang a woman
they might have to meet out at dinner afterwards."
And there is undoubtedly running through all our English institutions,
even the administration of the criminal law, a certain amount of class
snobbery which it would be better should be eliminated. Judges and
magistrates are, of course, only human. The wrong doing of a man or woman
of our own class naturally appeals to our bump of forgiveness more readily
than that of a slum dweller whose temptations and environment we know
nothing about.
Thus we can remember cases where lady shoplifters were discovered by
eminent physicians to be suffering from some extraordinary form of
neurasthenia--not insanity, of course--but one of those nervous breakdowns
that made an acquittal and a rest cure in a nursing home the only
appropriate course. Magistrates seem to grasp the medical facts about
these well-to-do unfortunates almost too readily; but had it been a
drunken woman snatching a pair of boots from a shop-nail in the street no
eminent physician would have diagnosed her peculiar form of neurosis. Even
if her husband had tendered evidence that of late the poor lady had been
strange in her manner, he would scarcely have been listened to with much
sorrowful attention. The good magistrate would have felt bound in the
interests of the poor tradesman to make an example of this criminal. Such
cases are not cases for acquittal, and the rest cure is generally three
months hard.
There are certainly too many cases where the wealth and position of a
prisoner leads to favoured treatment in the Criminal Courts. I am glad to
note that these are always pilloried in the Press and publicity is given
to them, and in a way nothing could be better because it is the open door
that has done so much to keep our courts free from the taint of any
suspicion of real corruption. I firmly believe that when these cases do
occur they are generally the outcome of a spirit of humanity on the part
of the presiding judge coupled to a certain extent by a class feeling of
tenderness on account of the terrible downfall of a man or woman in his
own social position. Such cases, too, are rare. No special note is taken
of any case where the law takes its ordinary course and the rich criminal
is treated in the same way as his poorer brother. These are, of course,
the great majority, and there are also many cases I am glad to know where
leniency and mercy is extended to the poor criminal and he is helped by
societies and personal aid to regain his position among honest men.
But with all this the poor man can point to too many instances where rich
hooligans running amok with a motor car in Regent Street or assaulting the
police on a racecourse are let off with a fine. Here is a curious case
from the London Sessions that is bound to cause a lot of talk in the mean
streets. A fashionably dressed young man was indicted in an admittedly
false name, and was allowed to use it for the purpose of the proceedings,
and pleaded guilty. He had obtained a sable stole, value £40, from a
costumier in Shaftesbury Avenue by false pretences. He had opened an
account at Oxford. He received a cheque book and then withdrew his money
and closed the account. He used to obtain goods which he paid for with
cheques on the Oxford Bank, and cheques to the amount of £5,241 6_s._
3_d._ had been returned marked "no account." A detective said he was a
young man leading a fast life. The city police had a warrant for him for
obtaining a ring value £145 and a gold watch £15. These articles it is
true were returned. The Oxford police had a warrant out for him and when
arrested he was attempting to obtain a valuable fur article in Dover
Street. His counsel urged that his parents were people of respectability
and integrity who had suffered losses, and the young gentleman was trying
to keep things going in the same style he had been accustomed to, and had
come under bad influences. That is the whole story, and the report ends,
"the defendant was bound over, the magistrate remarking that there was no
need to cause his relatives to suffer by mentioning his name."
How many poor men and women whose children have been taken away from them
for long terms of years to a reformatory or sent to gaol for months with
hard labour, to the knowledge of all their neighbours, will read that
report, and what will they think and say of the justice of our criminal
law? One pities the parents and relatives of this particular young
criminal waster as one pities the parents of all children and the children
of all parents when one or the other bring disgrace or ignominy on the
home--but why is this one particularly undesirable swindler to be allowed
the privilege of an alias in an indictment, and why is his name alone
among all the prisoners arraigned at the Sessions to be kept from the
world? And how hard it will be on some youngster of like criminal
tendencies when he comes before a court where harsher methods prevail, and
he finds that not only is his name brutally noised abroad, but offences of
this character are deemed worthy of imprisonment.
One would not wish to say a word against leniency to the young however
much it may savour of class-tenderness, but the concealment of a
criminal's name on his trial because his parents are well-to-do and
respectable, is just one of those things that the poor people treasure up
and quote as an instance of the law's unfairness. At a time when every
effort should be made to impress on the poor the impartiality of the law
little cases of this kind, arising no doubt from motives of kindness and
humanity, are exaggerated and quoted as typical of our criminal
administration--which assuredly they are not.
In cases where the whole of the resources of the State are against the
prisoner fair play demands that everything that can be done for him
without detriment to the demands of justice should be done. In a case of
murder which created a great sensation this year, the whole evidence
turned on identity. Several witnesses came to the police and said they had
seen the victim, a child, in company of the prisoner. Other witnesses had
stated to the police that they had seen the victim in company with a
woman. During the examination of the police inspector in charge of the
case he was asked by the defence for these statements, the magistrate
expressed his opinion that they should be shown to the solicitor for the
defence, but the counsel for the Crown, a gentleman of very wide
experience, "suggested that the proper thing for the solicitor for the
defence to do would be to go and see the people."
I do not for a moment say that the learned counsel was inaccurate in his
statement of a legal proposition. It may be that such is the law; but if
it is what does it mean? The police have honest statements of citizens in
their hands suggesting that a man has committed murder, they have equally
honest statements from other witnesses that the murder has been committed
by a woman. However mistaken they may believe the latter statements to be,
surely fair play demands that the prisoner should have access to these
statements for what they are worth. After all he is at present to be
deemed an innocent man, he is not even committed for trial, and he is a
citizen with as much right to the protection of the police as any other.
If they have statements going to prove his innocence he ought to have
access to them and be told who has made them so that he and his solicitor
can see how far they help to prove his case. But no, that is not the
official view. Counsel for the Crown no doubt states it correctly. The
proper thing is for the solicitor for the defence to go about at the
expense of the poor man he is defending and find these people out and take
statements afresh. It is a denial of justice, the man has not the money to
do it, his solicitor is not a charitable institution, and even if he were
he probably has not money and staff for such work. In this particular case
the whole of the police had scoured London for evidence to clear up the
mystery. Surely when a citizen was charged with the offence public
interest demands that the matter that has been discovered that goes to
prove innocence should be as readily available as matter that goes to
prove guilt. The present practice is to my mind a tradition, handed down
from the bad old days, that needs to be swept away. We ought to free our
criminal law from any shred of suggestion that the State is out to obtain
a conviction rather than an acquittal. The State is only interested in the
truth and justice of the verdict, and a true verdict obtained by methods
of injustice is a crime against the community.
Much might be said on the inequality of punishments. The question of the
advisability of corporal punishment is one upon which people hold strong
and conflicting opinions. I am not a sentimentalist on this subject. I am
told by some quite sane and scientific thinkers that for men, women and
children of the hooligan class who have a mania for violence and
destruction it is probably the most appropriate form of punishment. Its
good qualities are that it is cheap; it is soon over, but irksome whilst
it lasts; and it is said to appeal to the homeopathic instincts of the
hooligan class who recognise the justice of meeting violence by violence.
Against these positive merits it is very unequal in its incidence; one
victim will suffer more than others over the same punishment; and it is
brutalising, in some measure, to the flogger and floggee. Too much may be
made of this last argument, for nothing can be more brutalising and
deadening to all hopeful and better instincts than long terms of
imprisonment.
On the whole, my instinct is against flogging, because I am an optimist
and believe that though it has had its uses in the past as an educative
influence we have come to a state of civilisation when we should abolish
if possible all violent or cruel punishments. There was a lot perhaps to
be said for thumbscrews in their day, but that day is admittedly over. My
grumble about the cat-of-nine-tails and the birch is not so much that the
law should put them in the cupboard once and for ever, but that if they
are to be used at all, their lashes should, like God's good rain, descend
on rich and poor alike.
Take the crimes for which flogging is permissible punishment to-day. For
adults there is garrotting, offences under the Criminal Law Amendment Act,
procuring, etc., and being an incorrigible rogue. For lads under sixteen,
stealing and malicious damage.
Now the first objection to these punishments is that whether flogging is
or is not to be administered depends altogether on the taste and fancy of
the presiding Judge. Some think it is an advisable form of punishment;
others view it with disfavour. This element of human lottery in the
administration of the law should surely be kept under as far as possible.
Out of a hundred and forty-five criminals convicted of robbery only three
were flogged. An intending robber therefore who studies judicial "form" in
the statistics will see that it is about fifty to one against the cat,
and if he is the one unfortunate surely he has a distinct grievance
against the forty-nine lucky blackguards who escape.
When only three criminals receive this punishment in one year it is worth
while considering whether it should be continued, or, if it is to be
continued, whether it should not be extended to crimes against women and
children and other nameless horrors. Highway robbers to-day are all of the
lowest and the poorest, but in the other category of crime there are
sometimes men of means who find their way into the dock.
If it ever comes to be recognised, as Butler in his beautifully prophetic
account of the land of Erewhon would have us believe, that crime is a
disease and should be treated by a family Straightener, as we now call in
the doctor, then all doubts as to corporal punishment will disappear. The
Erewhonians when they had lapsed from the path of honesty took, under
their doctor's advice, a flogging once a week and a diet of bread and
water for three months on end with the same heroism and resignation with
which we undergo a cure at Harrogate after a London season. Once recognise
that the birch rod is a cure for dishonesty, violence, and malicious
injury to property, then all sensible men and women afflicted with these
tendencies would welcome the cure and visit their Straightener as they now
visit their dentist.
But at present we are far from the realisation of these sane,
clear-sighted dreams. Flogging, as the law uses it as a punishment to-day,
is not used, I fear, merely as a remedy or even a deterrent but rather by
way of revenge. It is almost wholly used against the very poor and
degraded. Even under the White Slave Act, I cannot remember any case in
which it has been used against a well-to-do man. In any case it is only
available against the actual procurer and not against the landlords,
ground landlords, restaurant proprietors, and dressmakers, who knowingly
share in the woman's earnings and live on them.
Flogging may, or may not, be an advisable form of punishment, but if it is
to be used, let it be administered automatically and without fear or
favour to all beasts and blackmailers and hooligans, be they rich or poor.
At present the chances of a rich man being flogged for his wickedness on
earth are about the same as those of the camel with an ambition to loop
the needle.
CHAPTER XI
THE POLICE COURT
_Squeezum._ The laws are turnpikes, only made to stop people who walk
on foot and not to interrupt those who drive through them in their
coaches.
FIELDING: "The Coffee-house Politician."
Act II., Scene II.
When Fielding was made a magistrate for the county of Middlesex in 1748
the popular notion of the office was expressed in the nickname, "The
trading justice." He was paid by fees and had a direct interest in the
prosperity of crime. The fees, moreover, were very small, and it was a
recognised thing that he should make his office a lucrative one by methods
exemplified by Mr. Justice Squeezum in Fielding's farce. Although the
great writer fulfilled the duties of his office with honour, fidelity, and
zeal, he has left us in no doubt about the immorality and ignorance of
many of his fellow justices. It is a relief to turn from the justice room
in Bow Street in the eighteenth century with its rogues and vagabonds on
their way to the whipping posts of the Bridewell, and its highwaymen and
thieves starting for Tyburn by way of Newgate, and to look on the
comparatively civilised picture of a metropolitan police court of to-day.
A century and a half has worked wonderful reforms for us in the world of
police and police courts, but one cannot honestly say that nothing remains
to be done. Direct bribery is no doubt abolished, justice is fearlessly
administered, but there are still traditional methods of imposing fines
and imprisonment which cause the poor to think that carriage folk go more
easily along the turnpikes of the law than those humble ones who travel
perforce on foot.
I am not writing of the police court as the antechamber of the Old Bailey.
In relation to the grave crimes against society we may fairly boast that
rich and poor are treated much alike. But the police court in matters
within its own jurisdiction is a machine for teaching better manners to
the poor. It is a somewhat harsh machine, perhaps, but in the main just
and necessary at the present state of our evolution.
When folk are naughty and violent and ill-mannered and ultra-selfish, and
become a nuisance to their neighbours, the police, if they are poor, take
them in hand, but if they are rich they are dealt with differently. Unless
they are so extravagantly and absurdly naughty as to become a public as
opposed to a private nuisance, there is no necessity for the police to
tackle the rich. When two "lydies" go for each other in the gutters of
Whitechapel the police step in, but when the same thing happens in
Mayfair, society--with a big S--maintains its own discipline.
The reason why rich folk are not so outwardly naughty as poor folk is
very much a matter of education and environment. As Lord Haldane in his
valuable speech in America explained to us, there is a "system of habitual
or customary conduct, ethical rather than legal, which embraces all those
obligations of the citizen which it is 'bad form' or 'not the thing' to
disregard."
Thus in the days of Sir Anthony Absolute it was "bad form" not to get
drunk after dinner, and it was "not the thing" to refuse to fight a duel.
These laws of conduct were not enforceable before magistrates, but they
were laws all the same, and rich people dared not disobey them for fear of
being "cut" by society.
And as the years roll on better education, better housing, better wages,
and less of that repressive Sabbatarianism that drives the poorer
youngsters into natural mischief will make the police court less and less
necessary as a school of manners. The conscience and good manners of all
classes attain a higher ideal every day, and the only reason the rich
arrive at a better standard of outward manners than the generality of the
poor is that they have been caught young and made to practise at it for
generations. It is not a matter entitling them to praise, but we are out
to set down and discuss facts, and undoubtedly it is so.
For instance, you would expect an Eton boy to play better cricket than a
St. Andrews caddie, but the caddie would probably beat the other's head
off at golf. It is environment that does it, and the lesson to be learned
is to improve in every way the material surroundings of the poor to the
utmost of our ability. Meanwhile the police court seems to me as necessary
a part of our equipment as a sewage works or an ashpit.
Crime is not only a matter of heredity and education, it is also a
question of geography. This geographical distribution of crime is an
intensely interesting subject. You will find that Cardigan, for instance,
is the whitest county in England and Wales for crimes of all kind, whether
against property, morals, or of a violent character. Glamorgan, on the
other hand, is only beaten by Monmouth in records of crimes against
property; in crimes of violence Glamorgan is easily first; in crimes
against morality Glamorgan again is only beaten by Dorset, Berks, Lincoln
and Huntingdon, the latter taking the 1905-09 record very comfortably.
Monmouth, happily, in this latter class of crime is in a far better case
than her neighbour.
If you can trace the history and causes of different crimes in different
districts I believe you may hope to sterilise a county of certain crimes
by moral sanitation and stamp them out just as we have rid counties of
typhus and the plague. In dealing with uncivilised crimes of mischief and
destruction we should always bear in mind that the poor who do these acts
are very often only human beings who have not been cultivated up to modern
standards. Some crimes are traditional in certain districts, and the
imitative faculty being strong in criminals, heredity and mimicry work
together to cause a certain historicity in crime.
Magistrates and others do not sufficiently study this. Patriotic county
officials loudly deny what everyone who reads the Judicial Statistics
knows to be true. In discussing the Edalji case I pointed out that to
anyone who studied the history of crime it was far more likely that such
crime would be committed by a native of the county than by a gentleman of
Parsee descent. This seemed to annoy some ardent Staffordshire folk, but
there is no reason why it should. Killing and maiming the cattle of others
is a very ancient pursuit and has only recently been regarded as criminal.
The wicked man in the Bible was often threatened with the destruction of
his cattle. No doubt the righteous man was encouraged thereby to take upon
himself the duty of avenging his wrongs by destroying his wicked
neighbour's cattle, and the wicked neighbour, believing himself to be the
righteous one, retaliated in kind. Certain it is that in border countries
we always read of cattle raiding and killing and maiming, and perhaps one
reason why Staffordshire is old fashioned in the cattle-maiming business
is that it was a border country, and in the good old days the lords and
squires raided cattle and destroyed their neighbour's farms and
boundaries, and these antiquated habits remain with some as natural
instincts of revenge.
In early days such acts were not considered criminal. The only malicious
injury to property known to the English common law as a crime was arson.
It was not until the time of Henry VIII. (37 Hen. VIII., c. 6) that it was
discovered that there were "divers sundry malicious and curious persons,
being men of evil and perverse disposition and seduced by the instigation
of the devil, who, to damnify the king's true subjects went about burning
frames of timber ready to be set up and edified for houses," and broke
down dams and moats or cut away lead pipes, or barked apple trees, or cut
out beasts' tongues, which seems a very ancient and horrible form of
maiming cattle. The penalty for these latter offences was the inadequate
fine of ten pounds.
In 1722 came the Black Act which made it felony without benefit of clergy
to "unlawfully or maliciously kill, maim, or wound any cattle." In 1861 a
Malicious Damage Act (24 & 25 Vict. c. 97) was passed, codifying all the
law relating to such offences, and that is the Act under which Mr. Edalji
was indicted.
I have worked out the geographical statistics of cattle maiming in England
for forty years, from 1861 to 1900, and they are extremely interesting. In
the first place it is well to know that the total number of such crimes is
rapidly decreasing. In five years, from 1865 there were over a hundred
cases; in five years prior to 1900 there were less than fifty. The
counties, which total more than twenty cases each, are York, Sussex,
Middlesex, Lincoln, Lancashire and Staffordshire. Somerset and Gloucester
have nineteen cases, but Gloucester has only one case since 1882 and
Somerset only six cases since 1870. Surrey has only eleven cases, and only
five occur since 1870. Anglesey and Westmoreland have only one such
charge each during the whole forty years. In the case of Staffordshire, in
the twenty-two cases taking place from 1861 to 1900 fifteen cases had
taken place since 1877, and there is never a clear five years in the
period without a case.
In 1903, when the Wyrley outrages took place, it seems to me that a county
with this history would have been sensible to look at home for the
criminal. In counties such as Somerset and Surrey, where the offence
seemed then to be dying out, the same considerations would not apply.
Whereas in Westmoreland or Anglesey the expectation would be that the
crime was committed by a stranger. I do not think it would be wise to
press these speculations too far, but at the same time I think magistrates
and police might make greater use of the wonderful statistics that are
collected and published by the State at such great expense and learn
useful lessons from them in their daily business.
Whilst we condemn the horrible savagery of such crimes it is only fair to
remember that the law does not punish them for their cruelty, but only for
their injury to property. Prevention of cruelty to animals is a far more
modern branch of law, the beginning of which dates from 1822. When Lord
Erskine moved his Bill against Cruelty to Animals in 1811, so absurdly
sentimental did it seem to the assembled peers that they drowned his
speech in a chorus of cat-calls and cock-crowing. It is well to remember
when measuring punishment in the police courts that there are individuals
and classes existing to-day that are scarcely more civilised than the
lords and barons of a hundred years ago.
The feudal lords and their henchmen did many things in the good old days
in their quarrels with their neighbours which to-day would bring them
before the justices. They wounded with intent, they did grievous bodily
harm to anyone who annoyed them, and they did as much malicious damage to
property as seemed in their own eyes a fair set off for insults had and
received. Among a certain small degraded class in our own country these
traditional pleasantries of the country-side are not fully recognised to
be crimes. There are a set of men among whom it is not "bad form" to
commit these acts. This form of atavism requires not only pity but further
and better repression at the hands of capable police.
As long, therefore, as we have these hereditary tendencies to crimes of
violence and selfishness, the police court seems to me to meet a felt
want. I can imagine a better world without any police court, just as I can
imagine this world with a better police court.
But I should like to see imprisonment kept entirely for evil-doers, and
that side of the police court work which consists in rate collecting and
semi-civil proceedings transferred elsewhere. At present many are sent to
gaol in the police court for the crime of poverty. In the cases of
non-payment of rates or of orders on parents to pay subscriptions to
industrial homes it seems a very bad policy to send a poor man to prison.
It takes a man from work, it does not produce money, and it throws a
family into the workhouse.
In these cases there is no pretence of proving a man's means and sending
him to gaol because he can pay and won't. No such evidence is necessary.
The man goes to prison because he is poor and has not the money to pay. If
the State thinks fit to put a man's child in a reformatory, one would
think it might stand the expense of it, without ruining the home by
imprisoning the father because he cannot subscribe towards his keep.
With regard to orders for maintaining a separated wife, or affiliation
orders, everyone would have less sympathy with the man who is sent to
prison for not paying these. But if a man has not the money he does not
make any in prison, and what these poor women want is regular weekly
money.
These are special cases in which I think power to attach a man's wages up
to a certain percentage would be a just and reasonable proposition. Such a
law might be unpopular with mankind, but it seems fair to the women.
Whether it would tend to increase or decrease maintenance and bastardy
orders I have not the least idea.
"Five shillings and costs or seven days." This familiar phrase, as Count
Smorltork says, "surprises by himself" the whole philosophy of police
courts. Nothing is more marked in the treatment of rich and poor in the
police court than the unfair incidence of fines. Take, for instance, the
common case of a motor-car driver being fined forty shillings and costs
for exceeding the speed limit and driving to the danger of mankind. If
his master is a Cabinet Minister, say, he writes a civil letter to the
clerk to the magistrates expressing his regret and enclosing the needful,
which is just two five-thousandths of his official income.
But supposing he is a taxi-cab driver who owns his cab, or is buying it on
the hire system, as many do. He, too, is fined forty shillings and costs,
and as he earns, let us say, forty shillings a week, he has to pay one
fifty-second of his income.
If he cannot raise the money his home is distrained on, or there is the
option of imprisonment. That kind of option never worries the Cabinet
Minister or the chauffeur thereof. In the old tithe days the parson took
his tenth from rich and poor alike, and was no respecter of persons; all
he wanted was one-tenth of your income in cash. As between Cabinet
Minister and cabman the relation of fine should be as two pounds to
ninepence--that is to say, if the law in the police courts desires to
treat rich and poor alike.
There is no difficulty about doing this. All that is wanted is to enact in
your statute that the fine should "not exceed one-fiftieth or one
one-thousandth of a man's income." Then all would be fined off the same
mark. At present the poor man is the scratch man, and the greater the
wealth the longer the handicap.
As to costs, they should be wholly abolished. They are not only an odious
tax on the poor, but they give the officials of the court an unholy
incentive to make the court a paying concern, and, what is worse, give
every clerk and officer in the police court a direct pecuniary interest in
convictions. As things stand to-day a council of city men are not likely
to advance salaries where their police court is losing money. A godly and
righteous police court should glory in losing money year by year.
And whilst I recognise that at the head of each police court there should
be a stipendiary to deal with the more important cases, and always to be
within call when there are cases to try in which the local magistrates
have a class interest, yet I have no desire to abolish Dogberry, nor do I
take any pleasure in reading that he has written himself down an ass. In
our chief cities there are now excellent stipendiaries and magistrates of
all classes, including representatives of working men, and all can testify
how--taking the police court system as it stands--it is worked fairly and
carefully and to the advantage of all.
But these places are far ahead of the county towns and districts where the
squire and parson reign supreme, and the clerk to the justices is their
own faithful attorney. I believe thoroughly that these men do their best,
but it is quite impossible that they can take a normal view of such
horrible crimes as the rape of a pheasant's egg or the snaring of a hare.
It is from the beautiful little corners of the lovely English country that
the bitter cry of injustice in the police courts makes itself heard from
time to time in the public Press. Why should not every hamlet have its
Village Plowden to brighten life on the country side?
There we see, let us hope, the last of a decaying and rotten
system--justice administered by a class unlearned in law, and unlearned in
a far more important branch of their business--the knowledge of the works
and days and temptations of the fellow sinners whose judges they have
elected themselves to be. In the remote country places more than anywhere
is the stipendiary a necessity. Meanwhile, why should not direct
representatives of the agricultural labourer be placed upon the bench if
we are not to abolish Dogberry altogether?
While these words are being written, an effort is being made with a
Criminal Administration Bill to do away with some of the abuses of the
police court. The imprisonment of people for non-payment of fines is
really imprisonment for poverty, and the scandal of it is at last
officially recognised and the necessity of reform admitted. That, at all
events, is to the good, though it is to be hoped that if the Bill at
present put forward is to pass it will be widely extended and simplified.
It is quite a good thing to enact that it shall be obligatory upon
magistrates to grant time for the payment of fines, but seeing that the
magistrates have always had this power and never used it to any useful
extent it would be well that there should be less discretion about the
matter. Law for lay magistrates should be automatic and fool-proof. When
you enact that a magistrate is obliged to allow time for payment of fines,
"unless the Court for any other special reason expressly directs that no
time shall be allowed," you are surely inviting the average justice to
supply himself with special reasons why he should not carry out a law
which you know by his past history he dislikes. It must not be forgotten
that in Manchester, although the fees legally allowed for a summons are
twelve shillings, the practice has been for fees not to exceed the fine.
Imprisonment for less than five days--which in the future is not to be
permitted--has for a long time not been allowed by the practice of the
Manchester justices. Where justices desire to be lenient and enforce the
law temperately they can do so to-day, and therefore it is clearly no use
in a new statute to leave a discretion to those who will certainly abide
by old and evil customs unless they are forced to do otherwise.
The statistics of the police courts show that in one year 92,000 citizens
were imprisoned in default of the payment of a fine and 80,000 imprisoned
without the option. The number of persons sentenced to pay fines is no
less than 460,000. Every year new statutes are passed making new offences
which can be committed with practical impunity by those whose purses are
long enough. Under the heading Betting and Gaming, 3,346 persons were
fined and only 738 went to prison. Under the heading Motor Cars, 10,631
were fined and only 36 went to prison in default; under the heading Sunday
Trading, 6,654 were fined and only 12 went to prison by default. These
offences are generally committed by persons with some money; but where the
parties are poor what a terrible difference in their punishment. The mere
giving of time to pay fines will not abolish this injustice unless the
fines are made, as has been suggested, in some ratio proportionate to a
man's income. If it were enacted that a fine should not exceed a day's
wage earned by the prisoner, that would be a method of doing away with the
burden of useless imprisonment that has to be borne by the poor. It is no
use enacting that the Court in fining an offender shall take into
consideration the means of the offender. I make no doubt that this is done
already to a large extent by stipendiaries and the more enlightened
magistrates. What is wanted is an actual printed tariff of fines fairly
proportioned to the means of the offender, beyond which the magistrates
may not go. Measures that depend on the sympathetic working by the members
of the bench will be in many districts a dead letter, and inasmuch as the
folk who go to prison in these cases are always poor people, very little
will be known of their trouble except by those few persons who study blue
books and statistics.
This habit of the magistracy to ignore the good intentions of Parliament
and the Home Office is in nothing more marked than in the refusal of many
country benches to give bail to poor people charged with offences that
have to be tried at Sessions or Assizes. Many judges have called the Grand
Juries' attention to the large number of prisoners who are left in prison
awaiting trial, some of whom are ultimately acquitted. But this is one of
the matters where magistrates must of necessity have discretion, and
although they receive Home Office circulars calling attention to their
duties in the matter of bail they prefer to go their own wrong-headed way
and unnecessarily keep a large number of poor persons in prison who might
quite safely be allowed to remain out on bail.
It is curious how history repeats itself and how a lay magistracy, as a
type, always tends to act without sympathy or consideration for the poor.
A hundred years ago the Yorkshire magistrates came to the conclusion that
it was a most improper thing that poor people committed for trial to the
House of Correction should be allowed to idle their time away at the
expense of the county, so they actually required them to work for their
living, and as the treadmill was the only apparatus of a commercial
character in the gaol the poor untried prisoner was put to walking round a
wheel in company of his convicted brother. The way in which the matter was
put by Mr. John Headlam, M.A., Chairman of the Quarter Sessions for the
North Riding of the County of York, is a perfect specimen of the true
Dogberry temperament: "With respect to those sentenced to labour as a
punishment, I apprehend, there is no difference of opinion. All are agreed
that it is a great defect in any prison where such convicts are
unemployed. But as to all other prisoners, whether debtors, persons
committed for trial, or convicts not sentenced to hard labour, if they
have no means of subsisting themselves, and must, if discharged, either
labour for their livelihood or apply for parochial relief; it seems unfair
to society at large, and especially to those who maintain themselves by
honest industry, that those who, by offending the laws, have subjected
themselves to imprisonment, should be lodged and clothed and fed, without
being called upon for the same exertions which others have to use to
obtain such advantages."
Of course the whole question is begged when an untried prisoner is called
an offender against the laws. The Headlam view of him always has been, and
is to-day, that the mere fact that a policeman has arrested him is proof
that he is an offender; this for all time has been justices' law, but it
is doubtful whether the old doctrine that a man is to be deemed innocent
until found guilty by a jury of his peers is not still sound law and ought
not to be more fully recognised by the lay magistrates.
Of course the particular wrong that Mr. Headlam was contending for has
long been abolished, not indeed without much argument and trouble, but we
still punish an untried man by imprisoning him before trial, and in very
many cases this is wholly unnecessary. The idea of keeping a man in prison
is that he should be forthcoming on the day of trial. In some serious
cases it is obviously necessary to keep a man in custody, but in many
small cases if a cheap bail was fixed there would be no difficulty in
finding the sureties and the prisoner could be outside arranging for his
defence and earning money for the support of his family until the day of
the trial.
Of 598 people acquitted at Assize Courts only 294 were allowed bail, so
that there is a clear admission in the official figures of three hundred
innocent persons--or persons not provably guilty--remaining in prison
because the justices will not carry out the Home Office suggestions as to
bail. Remember too that in some remote places there are very few assizes
and eighteen of these unhappy persons remained over three months in prison
awaiting trial. At Quarter Sessions the figures are even more remarkable.
Of 1,586 prisoners acquitted only 688 had been granted bail. Here you have
a large number of innocent men and women kept in gaol charged with
offences that are not of the most serious character, and this is done not
because in this peculiar instance the law itself is harsh--because the law
permits bail and the government office calls on the magistrates to make
use of the law--but because the law is administered by well-meaning but
incompetent men who have a fixed delusion, handed down to them from their
forbears of hundreds of years ago, that a man arrested for a crime by the
police and awaiting trial is, to use Mr. Headlam's phrase, "an offender
against the laws." Where there are no stipendiary magistrates it would not
be a bad plan to give any prisoner a right to appeal on refusal of bail to
a judge of the County Court who lives within the district and is of
necessity a magistrate though he seldom has much time to sit at petty
sessions.
Before we leave the Police Court I should like to draw attention to a
well-founded complaint against police methods that the Home Office might
certainly take into their consideration when they are reforming the
administration of the criminal law. I refer to the practice of
identification which has come so prominently before public notice in
recent criminal trials. I never met a prisoner who felt that it was fairly
done. For myself, I have the firmest belief that the police endeavour as a
rule to do what is right and straight, but after all we must not lose
sight of the fact that the police are there to clear up the crime and to
run in somebody--the real criminal of course for choice--and it seems
hardly right to put them at this very critical moment into the position of
a judicial authority deciding the most important point for or against the
man they have arrested and believe to be guilty.
I have always wondered what legal right a policeman has to put you in a
row with a lot of other men and bring people to look at you. Suppose a
prisoner refused to undergo the ordeal and the policeman used force to
compel him, could the prisoner recover damages for assault. These are
recondite, and in a sense absurd points; but they do, I think, help one to
see how wrong the present system is. At the ceremony of identification it
is obviously necessary that there should be a presiding magistrate to see
fair play and to take a record of what happened. It is really a part of
the trial and a most important part of the trial. That a witness should
identify a prisoner in a police yard in the absence of a judicial
authority is clearly an unjust thing. Once he--or more especially she--has
done so, the further swearing to the prisoner when he is in the dock is
nothing. What the magistrate ought to see is the demeanour of the
identifier when he first recognises the prisoner and especially ought a
justice to be present to see that there is no suspicion of unfairness in
the methods employed by the police.
We have had so many tragedies brought about by so-called identification,
that it is more than time that the business of it was taken out of the
hands of the police and made an integral part of the trial before the
magistrate to which it in truth belongs. These reforms will not, I think,
come about until we have stipendiary magistrates on the county benches,
but though I wish to see this I do not want the old office of Justice of
the Peace to be abolished. There is, and rightly ought to be, a keen
desire among laymen to attain to this position, and it is an office of
much dignity and respect and one in which a good man under sound legal
advice can do worthy public service. I have been a local justice of the
peace for many years and can testify to the number of occasions upon which
a magistrate residing in his district is called upon for small services
that would cost the applicant time and money if there was no available
magistrate.
A great many lay benches with a clerk of sound learning and legal
education administer excellent justice throughout the country. But there
are classes of cases connected with property that would be better tried by
a stipendiary unconnected with county society. I have a passion for
old-world things, and grieve over the disappearance of the parish
constables, the head boroughs, the tithing-men, the aletasters, the
beadles, and the reeves. I do not wish to abolish the Justice of the
Peace. I only wish to put him in his proper place. Of course, if he cannot
be happy there, then I am afraid he will have to go.
CHAPTER XII
LANDLORD AND TENANT
At number seven there's nob'dy lives, they left it yesterday;
Th' bum-baylis coom an' marked their things, an' took 'em a' away.
They hardly filled a donkey cart--aw know nowt wheer they went--
But they say th' chap spent his brass o' drink instead o' payin' th'
rent.
SAMUEL LAYCOCK: "Bowton's Yard."
In this branch of the law it cannot honestly be said that the legal
position of the poor is very different from the legal position of the
rich. Given private ownership of land and the right of a landlord to
distrain for rent in arrear, and seize and sell his tenant's goods to pay
himself, it does not seem that the law or the way in which it is
administered is better or worse for rich or poor. The law of distress is,
as its name implies, a harsh and cruel remedy and the shadow of it hangs
nearer and darker over the cottage porch than over the doors of the
eligible mansion, but it is there in both places. To a weekly wage owner
paying an exhausting rent out of a pitiful wage, the ever present right of
his landlord to distrain, whilst it nerves him to make every effort to
keep a clean rent book, must be one of the sad and depressing elements of
daily life that the middle classes do not experience so directly. It is
pleasant to record--what is in fact my experience--that whatever may have
been true of the cruelty of landlords in other times and places the
landlords of to-day owning cottage property are not a harsh race. They
themselves, especially the poorer ones, have their own troubles. The rates
have to be paid, the by-laws to be observed, the notices of the sanitary
inspector to be obeyed, and perhaps the fact that they themselves have to
ask for time to pay and to sue for leniency from corporations and other
officials leads them to be tender with their own underlings. Certain it is
that in the putting in force of the right to evict a tenant the landlord
is very long-suffering. This last step is not usually taken until the rent
is many weeks, or often months, in arrear. Even when an eviction order is
granted, I have known many cases where a landlord renews the tenancy and
collects the arrears at small instalments.
Eviction orders are very often asked for not in the landlord's own
interest but in the community's. The necessity to do the sanitary
requirements of public bodies is a constant source of eviction. The tenant
having no neighbouring house to go to clings to the undesirable shelter he
has got until the forces of the law turn him out in the interests of
hygiene. Another curious cause of eviction is a woman's tongue. A lady
with what is technically known as "a tongue" will set all her neighbours
by the ears; houses on each side of her domicile rapidly empty, and at
length the whole street comes to the landlord demanding that she shall go
or threatening to depart themselves.
The lady with "the tongue" of our day was, and as far as I know still may
be, known to the law as a common scold, and according to Chief Justice
Holt was punishable by ducking. Mrs. Foxby, of Maidstone, was, if I
remember, the last lady who was indicted at common law for this offence
and sentenced to be ducked. She moved, in Trinity Term, 1703, in arrest of
judgment because they had called her in the indictment "_calumniatrix_"
and not "_rixatrix_" and insisted on her motion, although Chief Justice
Holt in kindly warning reminded her that ducking in Trinity Term was
pleasanter than ducking in Michaelmas. As the Court pointed out, mere
scolding was not the offence, it was the constant repetition that was the
nuisance. In the result, after a year's litigation the flaw in the
indictment saved the Maidstone lady a ducking in the Medway.
But though the common scold and the ducking stool no longer figure in the
quarter sessions calendar--though it would rest with the Court of Criminal
Appeal to decide if they are yet entirely obsolete--the woman with a
tongue, the "_rixatrix_," or lady brawler is undoubtedly still existent
and has to be dealt with by the landlord of small property by County Court
eviction.
What is called a possession summons is taken out, and in the hearing of it
the lady always appears and protests vigorously against the treatment
meted out to her, arguing that the street is in a conspiracy against her,
and that she is the one quiet peaceful woman in the neighbourhood. Any
doubt as to the correctness of the judicial decision in making an eviction
order is solved as soon as the order is made, when, self-restraint being
no longer necessary, the full force of "the tongue" is turned upon the
landlord, the judge who is in league with him, and the two stalwart
members of the force who with some difficulty show the lady the door. Next
to dry rot and vermin, a tenant with "a tongue" is the greatest enemy of
the landlord of mean streets.
But what has long been recognised about the status of landlord and tenant,
is that under present economic circumstances it is impossible for a
wage-earner to obtain at the expenditure of a reasonable proportion of his
income proper housing for himself and his wife and children. The duty of
the State to the poor in this matter is gradually dawning on people's
minds, they are waking up to the fact that it cannot be done solely by
individual effort, and on this subject the law, I am glad to report, is
beginning to make serious efforts to set its houses in order.
At present legislation has taken upon itself three objects: (1) The
clearing of slum areas and rebuilding new dwellings, with powers of
compulsory purchase granted to local bodies. (2) The granting to
corporations and councils power to close insanitary houses, and to make
their owners repair them. (3) The permission to local authorities to build
houses for the working classes where there is an insufficiency.
We are a slow moving race. We generally do our legislative reforms by a
succession of statutes vigorously fought over and hacked about by gay
party spirits whose nearest idea of patriotism is to queer the other
fellow's pitch and spoil his budding statute by crimping amendments that
he knows will make it unworkable. We have only gone a little way with the
Housing business as yet, and if the next statute on the matter could be
put in the hands of a small committee of both parties to draft and bring
before the House, perhaps we should get somewhat nearer finality.
It is rather melancholy reading to pick up the latest pamphlet of the
bookstall on the Housing Question and find much of the writer's ingenuity
wasted in trying to prove that his party, and his only, has in the past
made any effort to better the housing of the people, and that in the
future there is only one honest capable scheme which is worthy of
consideration. There is not much real help in these essays. Their burden
is always the same. Recollect at the Election time--"Short's very well as
far as he goes, but the real friend is Codlin--not Short."
The truth is that neither party has done very much. The history of the
matter is much as follows: Writers of all parties and creeds in the Early
Victorian days wrote eloquently of the slum dwellings of our great cities.
Some of deeper insight than the rest saw that all was not well, even with
the rose-covered cottage of the country-side. It is only within our own
lifetime that we have begun to learn that it is morally and economically
wicked for a nation to own slums. This truth has not been taught us by the
priests and politicians of our time, but by our men of letters.
Dickens knew all about it and prophesied in despair that we should have to
wait for five hundred years for reform. You remember Tom-all-Alone's where
Jo lives: "It is a black, dilapidated street, avoided by all decent
people; where the crazy houses were seized upon, when their decay was far
advanced, by some bold vagrants who, after establishing their own
possessions took to letting them out in lodgings. Now these tumbling
tenements contain by night a swarm of misery. As, on the ruined human
wretch, vermin parasites appear, so, these ruined shelters have bred a
crowd of foul existence that crawls in and out of gaps in walls and
boards; and coils itself to sleep, in maggot numbers, where the rain drips
in; and comes and goes, fetching and carrying fever, and sowing more evil
in its every footprint than Lord Coodle, and Sir Thomas Doodle, and the
Duke of Foodle, and all the fine gentlemen in office, down to Zoodle,
shall set right in five hundred years--though born expressly to do it."
Maybe you could not find to-day an exact replica of Tom-all-Alone's;
certainly we have swept away acres of them, but it is still worth while to
read and remember such descriptions, if only to remind ourselves what the
poor have to suffer if the law remains powerless and inert in the
compulsory provision of decent housing. People grumble at State
interference, but they forget what made it necessary. Rampant
individualism led to housing workmen in the tailor's shop, described by
Alton Locke "a low lean-to room, stifling me with the combined odours of
human breath and perspirations, stale beer, the sweet sickly smell of gin,
and the sour and hardly less disgusting one of new cloth. On the floor,
thick with dust and dirt, scraps of stuff and ends of threads, sat some
dozen haggard, untidy, shoeless men, with a mingled look of care and
recklessness that made me shudder. The windows were tight closed to keep
out the cold winter air; and the condensed breath ran in streams down the
panes, chequering the dreary outlook of chimney-tops and smoke."
When we are wondering how far it is our right and duty to interfere
between a man and his house property or whether it is incumbent upon the
nation to take upon itself the burden of housing its people, it is useful
to look on these pictures of England in the glorious days of Queen
Victoria and Albert the Great and Good. The problems were there then, but
it was not the statesmen who saw them and urged their solution.
Nor was it only sentimental Radicals who painted in lurid colours the
horrible houses of the people. D'Israeli, in "Sybil," draws an eloquent
picture of the narrow lanes of the rural town of Marney, which might be
any country town of the South of England--the rubble cottages with gaping
chinks admitting every blast, with rotten timbers, yawning thatch letting
in the wind and wet, and open drains full of decomposing animal and
vegetable refuse, spreading out here and there with stagnant pools--these
things were common-places in the homes of rural England in 1845.
"These wretched tenements," writes D'Israeli, "seldom consisted of more
than two rooms, in one of which the whole family, however numerous, were
obliged to sleep, without distinction of age or sex or suffering. With the
water streaming down the walls, the light distinguished through the roof,
with no hearth even in winter, the virtuous mother in the sacred pangs of
child-birth gives forth another victim to our thoughtless civilisation,
surrounded by three generations, whose inevitable presence is more painful
than her sufferings in that hour of travail; while the father of her
coming child, in another corner of the sordid chamber, lies stricken by
that typhus which his contaminating dwelling has breathed into his veins,
and for whose next prey is perhaps destined his new-born child. These
swarming walls had neither windows nor doors sufficient to keep out the
weather or admit the sun or supply the means of ventilation, the humid or
putrid roof of thatch exhaling malaria like all other decaying vegetable
matter. The dwelling rooms were neither boarded nor paved; and whether it
were that some were situate in low and damp places, occasionally flooded
by the river and usually much below the level of the road, or that the
springs, as was often the case, would burst through the mud floor, the
ground was at no time better than so much clay, while sometimes you might
see little channels cut from the centre under the doorways to carry off
the water, and the door itself removed from its hinges, a resting place
for infancy in its deluged home. These hovels were, in many instances,
not provided with the commonest conveniences of the rudest police;
contiguous to every door might be observed the dung heap on which every
kind of filth was accumulated for the purpose of being disposed of for
manure, so that when the poor man opened his narrow habitation in the hope
of refreshing it with the breeze of summer, he was met with a mixture of
gases from reeking dung-hills."
Science, medicine, philanthropy, sanitary engineering and enlightened
local government have done something to remove many of the horrible things
D'Israeli describes, but one cannot say that the law has co-operated with
much vigour in this beneficent crusade. Without law and compulsion the
work will never be done as thoroughly as is necessary throughout the
length and breadth of the land.
The eloquent outcry, from writers of all creeds and parties, demanding
better houses for the people at length made itself heard within the walls
of Westminster. But it was not until 1868 that the Torrens Act was passed,
the first attempt of the Legislature to deal with slum property. This was
followed by the Artisans Dwelling Act of 1875, which enabled local
authorities to compulsorily purchase slum areas and re-build sanitary
dwellings. In Birmingham, where Mr. Joseph Chamberlain was mayor,
magnificent use was made of these powers to the great present benefit of
the city. In Liverpool, Manchester, and other towns something was done,
but as the business depended in the main on local initiative, and the
spending of money, much more remained undone.
A few small measures were passed, but they did not lead to any great
practical work being put in hand, and again it was the man of letters who
wakened the national conscience. I remember well in the eighties the
appearance of "How the Poor Live" by George R. Sims and the interest and
sympathy it aroused. There is no exaggeration in the book, but merely a
graphic record of fact, and it proves with melancholy certainty the small
progress that had been made since the days of Dickens, Kingsley and
D'Israeli.
It was with a great chorus of self congratulation and the loud braying of
journalistic trumpets that on March 4th, 1884, a Royal Commission was
announced to inquire into the Housing of the Working Classes. It is almost
forgotten to-day, but in its time it aroused great hopes in the breast of
social reformers. Sir Charles Dilke was Chairman, the Prince of Wales
himself was a working member of the commission, Cardinal Manning, Lord
Salisbury, Samuel Morley, Jesse Collings, Henry Broadhurst and other great
public men of the day were his colleagues.
The overcrowding, the immorality and disease and waste caused by bad
housing, the terrible tax of rent on the incomes of the poor were all
rehearsed in painful detail before these great ones of the earth. But when
one comes to remedies and recommendations, there is nothing except the
most trivial and inadequate propositions that the eminent ones can agree
upon.
Their first suggestion is that vestries and district boards should put in
force existing by-laws, though who was to make them do it is not
mentioned. Then they think it would be an added decency to the lives of
the poor if there were more mortuaries near their homes to take the dead
bodies from the already overcrowded rooms--as though the problem they were
there to consider was not the housing of the quick, but the housing of the
dead.
Building by-laws, sanitary inspection, and workmen's trains are a few of
the Mother Partington Mop remedies that this great Commission had to offer
to keep back the sea of troubles that overwhelmed the poor of our great
cities in their struggle for decent existence.
One cannot blame the members of the Commission that so little was
suggested. It was inevitable when one remembers that nothing at all is
possible in the right direction without a great upheaval which is bound to
re-act injuriously on some of the greatest vested interests in the
country. A meeting of the great ones in whom the interests vest is not
likely to bring about immediate reforms.
But at all events here in the pages of the printed evidence are the facts.
The horrors painted by D'Israeli, Kingsley, Dickens and George R. Sims are
at least patiently collated and indexed for us, and now after thirty years
we should do better not to expatiate on the little we have done for
betterment, but to acknowledge how much we have left undone, and show our
repentance in energetic deeds. No one can recognise more clearly than I do
the value of such authoritative evidence of facts and details as are
collected in the report, but the reading of them only makes one the more
impatient at the method of government which can tolerate the continuance
of such abuses.
In 1900, little or nothing having been done, it occurred to Lord Salisbury
that it was time to have another Commission. But it was not until 1902
that a Select Committee of both Houses was appointed to consider, in Lord
Salisbury's own words, how to get rid of "what is really a scandal to our
civilisation--I mean the sufferings which many of the working classes have
to undergo in order to obtain even the most moderate, I may say the most
pitiable accommodation."
The problem could not be better stated. The scandal was with us in 1885,
it was with us in 1900, and it is with us to-day. At least if we are
unwilling or incompetent to solve it let us have done with the constant
consideration and further consideration of Royal and Select Commissions
which only make the hearts of the poor sick with promises and hopes that
can never be fulfilled in our own generation.
One cannot here set out in detail the various Housing Acts that have been
passed; there was one in 1900, which apparently led to more insanitary
houses being closed than new cottages built. There was another in 1903,
with further new provisions and modifications of former schemes, and
lastly comes the Housing and Town Planning Act, which deals rigorously
with owners of insanitary property. This Act industriously made use of may
help to realise our hopes of the possibility of hygienic pleasances for
the poor of future generations.
Here we have a short record of some fifty years of legislative
effort--more or less honest--in which each party has sought to promote
measures to help the poor who are oppressed, as Lord Salisbury said, by
this "scandal to our civilisation," the want of decent housing. And yet
how little has been achieved, how small the results, how disappointing to
find the great men who talked in Parliament and sat on Commissions and
discussed these matters with so much learning and ability passing away and
leaving this problem for us to tackle, and we on our part looking idly on
and still wondering what can be done. If our schoolmasters had taught us
how to make bricks and build with them instead of how to read books and
write more of them, better results perhaps had been already achieved.
There are many acres of houses in England built prior to 1870 that exhibit
all the slum traits that have been so eloquently described in literature,
and many millions of our fellow citizens live in houses which fall below
the minimum standard of sanitation where the decent separation of the
sexes is impossible and the general conditions of life are sunless and
miserable. The amount of overcrowding in England and Wales is shown
graphically enough in the census returns for 1911. Overcrowding from a
census point of view means that more than two persons live in a room,
counting the kitchen as a room, but not the scullery. "Thus," as the
Editor of the Land Inquiry Report tells us, "if a tenement or cottage
consists of two bedrooms and a kitchen, the Census Authorities would only
describe it as overcrowded if there were more than six persons living in
it, no matter how small the rooms. The Census test of overcrowding is, in
fact, quite inadequate to measure the full extent of the evil, and there
is great need for the adoption of a more accurate one. Even adopting this
standard, however, the Census Authorities find that one-tenth of the total
urban population of England and Wales are overcrowded. This means that
nearly 3,000,000 persons are overcrowded."
No one who is constantly meeting the victims of this state of affairs, and
discussing with them, as a County Court Judge has to do, their domestic
affairs, can fail to be struck with the large amount of infantile
mortality and disease, and the prevalence of tuberculosis and the general
physical and moral weariness and debility, which may in a great measure be
traced to the bad conditions in which the working classes must perforce
live because there is nothing better obtainable.
The price paid for such accommodation as there is, is a cruel tax on the
working man. For the meanest shelter he has to pay anything up to twenty
per cent. of his weekly income. Imagine a man with a thousand a year
spending two hundred a year in rent alone. How eloquent would the Official
Receiver be did bankruptcy supervene, as it probably would, and what
homilies he would preach on the rash and extravagant folly of the bankrupt
in spending so large a proportion of his income on a house. And yet this
extravagance is compulsory to a working man, who has to pay out of his
wages for a mere roof over his head money that is badly needed for the
food and clothing of himself and his family.
I have dwelt on this subject at some length because in most of the
chapters of this book my complaint has been that the laws are insufficient
to help the poor, because they have in past days been enacted by the rich,
and are still being administered by the rich, without knowledge of, and
sympathy for, the best interests of the poor. Here the problem is entirely
different. Everyone must admit the energy and good faith of all classes
and parties and officials, within the rules of the party game, in their
endeavour to cope with a condition of things which is an admitted national
disgrace, and a scandal to civilisation. The melancholy conclusion,
however, stares one in the face. The result of interminable inquiries and
committee meetings and palaver is plain unmistakable failure. The fringe
of the subject has scarcely been reached, and the state of affairs which
the man of letters portrayed to the shame of our grandfathers is likely
enough, it would seem, to be "copy" for our grandchildren and their
grandchildren to journalise with world without end Amen!
And although it would be impertinent in me to pretend to have a remedy for
these evils where all the great ones have failed to bring about reform,
yet I cannot help thinking that the reason of the failure is the reason of
much of our legislative failure--the dread of vested interests and the
permissive character of the statutes passed. What is the good of asking a
town council of builders and landowners and estate agents to put in force
laws that will, or at least are expected to, have the effect of
diminishing their incomes? Should I, or would you, enforce an Act of
Parliament with any joyful energy when we knew that the more thoroughly we
did it the more we should be out of pocket? It is asking too much of human
nature.
There has been a clear failure in the smaller local governing bodies in
putting in force even such legislation as exists for the betterment of the
district. The Rivers Pollution Acts are a standing instance of the neglect
of duty by local councils. For years nothing was done to put the Acts in
force, because the smaller polluters were the mill owners, who were
members of the local council, and the biggest polluter of all was the
council itself pouring crude sewage into the river to relieve the rates.
Parliament lacked a sense of humour when it expected mill owners and
sewage boards to prosecute themselves for river pollution.
Good work in housing will never, I think, be really effectively done until
it is left to the initiative of a medical officer of health or a sanitary
engineer, with judicial power to order things to be done and force behind
him to have them done. The idea that a medical officer of health should be
a servant of the casual butchers and bakers of the Town Council is, on the
face of it, an absurd one. He should be as permanent and independent as
are the stipendiary, the judge, or the coroner, for he requires even more
than common fearlessness to deal roundly with the jerry builders and slum
owners who are his aldermen and councillors, and who at present sit on a
committee of appeal from his decisions.
As long as these matters are left solely to local bodies the real burden
of financial consideration, the lack of personal knowledge of hygiene and
sanitation among the members themselves, and the shrinking from enforcing
legal hardships on the poor owners of bad property, will alone prevent
effective reform. To these natural and honest forces must also be added
the weight of vested interests, which deliberately obtain power on local
bodies for the purpose of preventing housing reform being put into
thorough operation.
Never was there a greater and louder demand by the people for a fair share
of the land they live in. The countryman wants his plot and his cottage,
and the town dweller a decent house at a reasonable rent. This is the
"condition of England question" to-day as it was eighty years ago. Never
were there more earnest and sincere people discussing what is to be done
and how it is possible to transform slums into decent dwellings by Act of
Parliament. We have a willing legislature, a desire to make laws for the
benefit of the poor, and after many efforts the result has to be written
down as failure and stagnation. It would almost seem as though voluntary
effort in this affair had pronounced itself impossible, and it remains
undealt with until those who are the real sufferers by the system feel
strong enough to put it right.
Carlyle in an eloquent passage cries out in his passionate way: "Might and
Right do differ frightfully from hour to hour; but give them centuries to
try it in, they are found to be identical. Whose land _was_ this of
Britain? God's who made it, His and no other's it was and is. Who of God's
creatures had a right to live in it? The wolves and bisons? Yes, they;
till one with a better right showed himself. The Celt, 'aboriginal savage
of Europe,' as a snarling antiquary names him arrived, pretending to have
a better right, and did accordingly, not without pain to the bisons, make
good the same. He had a better right to that piece of God's land; namely,
a better might to turn it to use--a might to settle himself there and try
what use he could turn it to. The bisons disappeared; the Celts took
possession and tilled."
Interpreting this passage as one written in the true frenzy of prophecy,
two things seem to me to take clear shape in the future outlook of the
housing question. In the first place, it would seem that it will have to
be settled by a Celt, and in the second place it will not be achieved
"without pain to the bisons."
One would have thought that a better plan would be a small business
parliamentary committee of all interests with power to enforce their
decrees against owners and corporate bodies. Something permanent is
necessary, akin to the Imperial Defence Committee, which knows no party
politics. Are we not here in the face of a real danger to the nation?
Already endeavours have been made to take this matter out of the common
rut of party politics, but these efforts have not been altogether
successful, and if the matter is not settled soon there would seem nothing
for it but a forcible solution and a merry set-to between the Celt and the
bison, in which we may expect the Celt will get the better of the bison
but we cannot be sure that the poor will get all they need even from the
Celt.
CHAPTER XIII
THE TWO PUBLIC HOUSES
1. THE ALEHOUSE.
Judged by no o'er-zealous rigour
Much this mystic throng expresses;
Bacchus was the type of vigour
And Silenus of excesses.
LONGFELLOW: "Drinking Song."
Whatever you may think about it you cannot travel from Charing Cross to
Dijon through the hop-fields of Kent to the vineyards of the Côte-d'Or
without admitting that whether the vine be a gift of good or evil it has
come to stay. Bacchus is still full of vigour and has as many followers as
ever. But the law has nothing to say to Bacchus. The law is after old
Silenus. It lures him into a den and makes him drunk and then locks him
up, and the holy Willies wag their heads at his shame and collect money
for his reformation.
There are two public houses open to the poorer citizens--the Alehouse and
the Workhouse. The rich man frequents neither, yet as magistrate or
guardian he takes upon himself to lay down the rules by which they shall
be run. These fussy, amiable, amateur bosses have conspicuously failed at
their job. It is not to be wondered at. As an able Manchester business
man once said to me of his partner: "He loves sitting on the licensing
bench, and thank heaven he does; it keeps him out of the office." But even
if the bosses were capable and intelligent they could not hope to succeed
in their work. Public institutions should be governed by the men who make
use of them. The rich man's public-house is so regulated--and what is the
result? One may not approve of every detail of cookery or decoration at
hotels like the Ritz in London, or the Adelphi and Midland in Liverpool
and Manchester, but the average middle-class man will find in them such
reasonable standard of comfort as he desires. There is, at all events,
space and light and air, cleanliness, and some luxury. On proper occasions
and in fit places there is music, dancing, and billiards, and you may play
a game of bridge with your friends when you wish, even for threepence a
hundred, in a private room. Moreover, there is always food of good quality
obtainable at varied prices, and you need not take your drink standing at
a counter, though you can if you wish to when there is an American bar.
Why may not the working man have similar entertainment at the Pig and
Whistle? A complete answer to that question would necessitate a study of
the position of artificers and labourers in the middle ages and a short
history of the ideals of the well-to-do puritans.
The rich have had two objects in view in their legislation about the
working-man's public house. A certain section of the rich--the
brewers--have aimed at a monopoly of the right to sell him ale, and
nothing else, at the biggest possible profit to themselves. A second
section opposing the first--the teetotal magistracy--have sought to make
the public house as dreary and miserable a place as possible in order to
punish the wicked man who wants to drink ale. Between the brewer and the
puritan the respectable working man with a normal thirst has been jockeyed
out of his freedom. Swilling and tippling in alehouses and private clubs
has been encouraged; the reasonable use of ale--which Mr. Belloc rightly
asserts to be the finest beverage in the world--has been crabbed and
discouraged. Except an opium den--of which I have only hearsay
knowledge--there is probably nothing more comfortless and degrading than
the lower-class alehouse of our towns and cities.
Even in the remote days of Plato it was recognised--at all events by
philosophers--that there was such a thing as thirst. "No one desires
_drink_ simply, but good drink, nor food simply, but good food; because,
since all desire good things, if thirst is a desire, it must be a desire
of something good." Further on in the discussion, Socrates addresses
Ademantus thus: "Then for any particular kind of drink there is a
particular kind of thirst; but thirst in the abstract is neither for much
drink, nor for little, neither for good drink nor for bad, nor, in one
word for any kind of drink, but simply and absolutely thirst for drink is
it not?"
"Most decidedly so," replies Ademantus--who never on any occasion stood
up to Socrates and contradicted him. "Most decidedly so."
"Then the soul of a thirsty man," continues Socrates, "in so far as he is
thirsty has no other wish than to drink; but this it desires and towards
this it is impelled."
"Clearly so."
If the licensing bench, and especially the teetotal portion of it, could
once arrive as far in their studies of the subject as Socrates had done,
and could comprehend the zoological fact that man was a mammal with a
thirst, they would be on the road to enlightenment, temperance, and
reform.
Of course Socrates knew all that the puritans know and a lot more about
the rational satisfaction of love and hunger and thirst and the irrational
and concupiscent desires that are attached to all natural appetites, but
in dealing with the law of licensing in reference to the poor these
considerations are not really important. What is wanted is equality. Grant
to the poor the same reasonable facilities of enjoyment that you grant to
the rich, and leave it to public opinion to see that they are not abused.
It is a grave disaster that the granting and regulation of licenses should
have fallen into the hands it has. Mr. Balfour's observation "that among
all the social evils which meet us in every walk of life, every sphere of
activity, the greatest of all evils is the evil of intemperance" is useful
as a peroration to any platform speech on the subject, but only makes the
judicious grieve that with the opportunity to do exactly as he liked and
the ability to draft useful legislation, Mr. Balfour did nothing whatever
to improve matters and diminish the evil of which he was so sensible.
Section 4 of his Act does indeed enable the magistrates to grant new
licenses and to make their own conditions as to the payments to be made by
the licensee, the tenure of the license, and any other matters "as they
think proper in the interests of the public." Under this section if there
were a licensing bench containing a working majority of friends of the
people, men who had no social or political interest whatever either in
breweries or teetotallers, it would seem that almost any experiment in
model public houses could be made under any regulations that the bench
chose to impose on the licensee. Mr. Balfour was perfectly right in
telling us that "love of temperance is the polite name for hatred of the
publican"; but what is the right name for love of the brewer? The fact is
that with these two warring political factions in the field the ideal
public house is not for this generation. No use will ever be made of
Section 4 under present conditions, because whoever applied for a license,
and however noble and beautiful the licensed premises were to be, however
ideal the provision of food, entertainment and drink, and whatever the
guarantees of good management, the combined opposition of the puritans and
the brewers would always strive to defeat or destroy any effort to give
the poorer classes pure beer in pure surroundings.
The first step you have to take is to convince the unenlightened puritan
that the Alehouse is, or ought to be, as worthy a public house as the
church or the school. This might be done by means of thoughtfully prepared
text books of English literature. There is no great English book from the
Bible downwards that has not incidental good and holy things to tell you
of "The Inn." What an appetising volume could be written of the inns and
innkeepers of Charles Dickens. How he revelled in their outward appearance
and the inward soul of welcome which he found there. How he rejoiced in
his sane English way over "The Maypole," "with its overhanging stories,
drowsy little panes of glass and front bulging out and projecting over the
pathway," and honest John Willet, the burly, large-headed man with a fat
face, intended by providence and nature for licensed victualling. Could we
have met Mrs. Lupin anywhere else than beneath the sign of that "certain
Dragon who swung and creaked complainingly before the village alehouse
door"? Could Mark Tapley have acquired his saintly outlook on life
anywhere but at "The Blue Dragon," and are we not full of joy to find him
returning there to live happily ever afterwards under the "wery new,
conwivial, and expressive" sign of "The Jolly Tapley"? How pleasant it is
to assist Crummles and Nicholas over their bowl of punch and the
beefsteak-pudding in the inn on the Portsmouth Road. Pickwick is a
cyclopædia of inns, each with its own human character, good, bad and
indifferent. Who has not stayed at a "Peacock" with a "mantelshelf
ornamented with a wooden inkstand, containing one stump of a pen and half
a wafer: a road book and directory: a county history minus the cover: and
the mortal remains of a trout in a glass coffin"?
One could run on in pleasant remembrances of these beautiful and
delightful places by the hour, but one imagines that even the most
hardened political teetotaller must really know all about them, and
perhaps in his dreams strolls into "The Marquis of Granby" and sips his
glass of reeking hot pine-apple rum and water with a slice of lemon in it,
and awakens to the horrible imagination that his astral body has wandered
instinctively into a manifestation of his master and leader, the
incomparable Stiggins.
One very noticeable matter about any old-world book in which inns are
faithfully pictured is that in former days there was a real race of
English innkeepers, independent licensed victuallers, not mere brewers'
managers. There are still a few remaining with us who keep up the old
traditions, but the political forces of brewers and teetotallers have
squeezed this excellent race of public servants almost wholly out of
existence. You remember the Six-Jolly-Fellowship-Porters whose bar was "a
bar to soften the human breast" with its "corpulent little casks and
cordial bottles radiant with fictitious grapes in bunches and lemons in
nets and biscuits in baskets, and polite beer-pulls that made low bows
when customers were served with beer." How could there have been such an
ideal haven for the weary porters but for the sole proprietor and manager,
Miss Abbey Potterson, whose dignity and firmness were a tradition of the
riverside?
And then the dressing down she gave Rogue Riderhood.
"But you know, Miss Potterson," this was suggested very meekly though, "if
I behave myself you can't help serving me, miss."
"_Can't I!_" said Abbey with infinite expression.
"No, Miss Potterson; because you see the law----"
"I am the law here, my man," returned Miss Abbey, "and I'll soon convince
you of that if you doubt it at all."
"I never said I did doubt it at all, Miss Abbey."
"So much the better for you."
And how much better not only for Rogue Riderhood, but for all of us, if we
could once again make licensed victualling a great and respectable trade,
and once again have a race of people managing businesses that they could
really take a pride in.
The death of the old Boniface who owned his house and bought his beer in
the open market was brought about by the amalgamation of the smaller
breweries in the country, and the purchase of the bulk of the licensed
houses by the big breweries. The teetotallers assisted this natural
evolution by harassing individual owners with trumpery prosecutions,
opposing alterations and transfers at licensing sessions, and surrounding
the commercial life of an individual licensee with persecution and
annoyance and continued threats of impending ruin. One man could not fight
the great moneyed forces of the puritans, and the licensed holder was glad
to get out of an impossible trade by selling his interest to the brewers.
Most of the licensed houses in the country now belong in everything but
name to the big brewery companies. Their political friends have given them
a vested interest in their licenses, and the teetotallers having spent
large sums of money and wasted much energy in manoeuvring their
opponents into this excellent position, now sit sulkily at the gates of
it, and as they cannot do any effective good themselves, take earnest
pleasure in preventing any enlightened brewer from making the conditions
under which he sells his drink better and healthier for the community.
The result is that the poor man suffers. In the whole of this long
unworthy struggle between the political teetotaller and the brewer, the
higher interests of the poor and the real desires of the working classes
are scarcely ever mentioned--still less considered. When he is in
sufficient numbers, and is well enough off to do so, the poor man starts a
club like his betters, and no doubt these are valuable institutions, but
the club at the best does little for the wives and children, and is apt,
unless the public opinion of it is sound, to lead a man astray owing to
its very privacy. The puritan ideal is to drive the drinker into dark
secret places, and as far as possible make his surroundings uncomfortable
and degrading. The policy of the future is going to be to encourage the
authorities--and, if necessary, get new and more up-to-date
authorities--to replace the old dark, dirty puritan pub with a bright and
enchanting reformed inn, fit for all classes of folk, with music,
entertainment, and all manner of reasonable refreshment. Nothing can be
done until we recognise frankly that for years we have been moving along a
false track towards a mirage castle in the air, and that if anything
useful is to be achieved by administration or legislation we must turn our
backs on the past and start along a new road.
Some few facts seem beyond dispute. The mere cutting down of licenses has
in itself no demonstrable effect on the evil of the drink habit. The
manners and habits of all classes of people are tending to temperance and
sobriety, but the consumption of exciseable articles is increasing--last
year there was an increase of £5,128,000 over the figures of 1912.
What, then, is to be done? I think if we really want to do good in the
matter and can approach it without a desire to make dividends out of
brewery shares, or make alliances with teetotallers for political ends, we
shall have to look to some extent to foreign examples for guidance in our
difficulties.
All of us who have had leisure and money to see something of foreign
countries know that the squalid ideal of the brewer and the puritan is not
the only possible solution of such social difficulty as there is in
providing reasonable alehouses. The British public-house is a national
disgrace thrust by the rich on the poor by means of law. The working man
has no chance of amending things, as he has no say in electing the bosses.
Labour leaders short-sightedly favour the puritans' views. Certainly, our
public-houses being what they are, it is a choice of evils to keep out of
them.
But why should public-houses be what they are? I well remember at Mayence
entering a beautiful public hall--it was a rainy night, or the
entertainment would have been out of doors--where there was a fine string
band playing excellent music. Men, women, and children sat at tables and
had ham and bread and cake and beer and coffee, and those who wished to do
so smoked. There was no swilling at counters, there was no forced
teetotalism, there was no drunkenness; merely domestic liberty for
rational enjoyment.
Why cannot there be sufficient free trade in the beer business of this
country to allow an individual or, if you prefer it, an enlightened
municipality--where such exists--to copy the sane entertainments of our
German neighbours? A working man and his wife and children spend their
evening listening to the band in a German beer-garden with as little sense
of impropriety as Lord and Lady De Vere and the Hon. Gladys De Vere take
their lunch at the Ritz, or Alderman and Mrs. Snooks lunch in the French
restaurant at the Midland.
But in England these domestic felicities are for the rich alone. The
brewers and puritans have given the poor man a mean tippling-house to
booze in, and deny him anything better. His wife is looked upon as
degraded if she joins him at the only place where he can spend his
leisure, and the rich lawgivers put the true stamp on their own invention
by enacting that it is an unfit place for little children to enter.
The fact is that the public house should be built in the interests of the
public. There seems no great decrease in the desire to drink good ale. It
is a national taste, and, if the ale be good, it is probably at least as
healthy, or healthier, than drinking tea as tea is brewed in cottage
homes. But in the name of liberty and equality, surely if a man wants to
drink ale in moderation he should be encouraged to do so in bright,
pleasant surroundings, where he can spend his evenings at a moderate cost
with his wife and children and meet his friends. He should be allowed to
open such a place himself if the municipality will not do it for him, and
the more civilised brewers should be assisted and encouraged by the
licensing authorities to build big, spacious public houses, where the poor
man could obtain similar entertainment to that provided for his wealthier
brother.
There is something almost shameless in the way in which the law of
licensing is stretched to the uttermost for the rich and drawn to the
narrowmost for the poor. One picks up a paper with an account of the
latest midnight ball--the gayest event of the season--all in the interests
of charity, of course. What has become of that closing time which, if
overstepped by the poor, means police court for the criminals and loss of
license to the innkeeper? It has been extended, no doubt, by a complacent
magistrate, and you can sit down to supper at midnight, and all night long
you can refresh yourself at American bars presided over by beautiful
ladies of the chorus. One gathers there will be no closing time at all, as
breakfasts will be served from three o'clock. In the intervals of the
dancing there are to be famous music-hall turns. At some of these
fashionable dances valuable prizes are given, at others these fall to
lucky ones by some form of lot--not lottery, of course, for that would be
against the law, and these entertainments are arranged by eminent leaders
of society who are always within the law--well within it.
It would be ill mannered to endeavour to stop so much innocent enjoyment
of a class that has so little real pleasure by enforcing the licensing and
other laws to interfere with their amusements. On the contrary, we should
seek to use their example and better our own licensing circumstances by an
appeal to their precedent. If it is good for leaders of society to sing
and dance and sup after hours in their public houses, why should not the
rest of society be allowed to follow their example and have their own
beanfeasts in ample public houses undisturbed by the law? Of course there
must be a charity! Give me an extension of license in the Old Kent Road
and I will provide plenty of charities and plenty of lads and lasses ready
to sing Mr. Adrian Ross's refrain:
Care has gone to sleep till morning,
Night's the noon of joy.
For the young people of the poor are just as fond of a spree as those of
the rich, and quite as ready to be charitable to the extent of their means
after the same fashion.
There is an excellent letter of Charles Kingsley's written to the
"Christian Socialist" some sixty years ago that might well be circulated
among licensing benches by the Home Office--though I believe it is
considered officially to be bad economy to address printed common sense to
the unpaid magistracy. Naturally, autocrats resent or scoff at advice that
has no sanction behind it. The teetotal attitude of mind and the quarrels
it aroused very properly disgusted Kingsley. He took no pleasure in
hearing the water drinkers calling the beer drinkers "flabby, pot-bellied,
muddle-headed, disgusting old brutes," and the beer drinkers retorting on
the water drinkers that they were "conceited puritans and manichees and
ascetics." He saw that the quarrel would not do any good to the cause of
temperance, and in his honest enthusiasm blurted out the truth, the whole
truth and nothing but the truth about his teetotal friends, like the good
old Christian warrior that he was.
"On my honour," he writes, "unless the teetotallers show a more humble,
gentle and tolerant spirit than is common among them I shall advise beer
drinkers like myself and Mr. Hughes (Tom Brown of the Schooldays) either
to flee the country, or if their cloth allows them, which mine does not,
prove by self-defence that a man can value his beer, and thank God for it
with a good conscience, as tens of thousands do daily and yet feel as
tight about the loin and as wiry in the arm as any teetotaller in England.
Honestly, I am jesting in earnest. I regard this teetotal movement with
extreme dread. I deeply sympathise with the horror of our English
drunkenness that produced it. I honour every teetotaller as I honour
every man who proves by his action that he possesses high principle and
manful self-restraint.... That a man should be a teetotaller rather than a
drunkard needs no proof. Also that a man should go about in a sack rather
than be a fop and waste time and money on dress. But I think temperance in
beer, like temperance in clothes, is at once a more rational and a higher
virtue either than sackcloth or water."
This was true doctrine then and is true doctrine to-day, and the sad fact
that it fell on deaf ears and is still but half understood is the reason
of our backwardness in licensing reform and the presence of the degrading
public house which the law cherishes and protects.
Only the other day in a country town, on the application for a license,
the police superintendent objected to the house on the ground of the small
bar accommodation. His Grace the Duke, who happened to be in the chair,
wanted to know if the proprietor of the house would prepare a plan for
enlarging the bar accommodation. What could the proprietor do? The police
wanted to herd the drinkers into a bar so that they could pop their heads
in and see them all at once without any trouble, the bench wanted to do
what the police wanted them to do. The interests of the poor, the cause of
temperance, the betterment of the social life of the people were as
irrelevant to the case as the flowers that bloom in the spring.
At many a licensing session, too, you will listen to solemn warnings by
the superintendent of police against the public being allowed to amuse
themselves with penny-in-the-slot machines or gramophones or parlour
quoits or the like. Amusement is regarded with a natural horror by the
puritan, and the friends of the brewer see in it a dangerous alternative
to the duty of the working man to drink. One police authority threatened
the license holders "that if they continued to allow these machines to be
used in their licensed premises they did so at the risk of prosecution for
allowing gaming." The gaming laws of England with their wholesale
permission of gambling in one place and their retail persecution of
gambling in another place, and their incapacity to know when a place is
not a place or how otherwise, are a public laughing stock, but it is a
grievous thing that they should be dragged out to drive a little harmless
amusement out of the dingy tavern which is the only public institution the
poor man has for rest and recreation.
As a matter of fact, these machines, if they are used for gambling, are
generally used to see who shall pay for drinks. In some bars in foreign
countries a dice-box is always handy for this purpose. Three or four
friends come in and throw, the loser pays for drinks, and all are
satisfied, and having had their drink they go. I am not upholding the
custom as ideal, but I see little harm in it. In England, if three or four
enter a public house, the etiquette in many places is for one to stand
drinks, and for the rest in turn to offer to stand another round--an offer
seldom refused--and for the rounds to continue until each has stood his
corner. I would not go so far as to insist on a compulsory dice-box in
every bar, but I fancy on the whole that it is an agent of temperance.
Every one who has given any thought to temperance as opposed to
teetotalism, is agreed that what is wanted is the gradual elimination of
bars and counters and the substitution of chairs and tables and big open
rooms. In these must be provided tea, coffee, and all the usual lighter
refreshments that you find in the better-class restaurants and hotels. In
a big West End hotel you find every afternoon that the lounge is laid out
for afternoon tea. I do not see why a working man and his wife should not
have their tea in a lounge in their public house. I cannot understand why,
if two friends after a day in the workshop want to have a friendly chat,
they cannot find an institution where one can have his cup of tea and a
muffin, and the other his glass of ale and a sandwich, and both sit at one
table in a spacious room with comfortable surroundings, and if they do not
heartily dislike it a gramophone to play tunes to them. That is impossible
of attainment as the law now stands. If a millionaire was to offer to
build in Manchester a dozen working-men's cafés on the continental plan
where any decent citizen could be pleased to take his wife and children,
as our French and German neighbours do, the brewers, the teetotallers, the
police, the licensing magistrates and the law would see that it was not
permitted.
And yet we know by experiment that in proper surroundings, reasonable
facilities for refreshment do not lead to drunkenness. In the Manchester
Exhibition of 1887, it being a wonderfully fine summer, and licenses
having been freely given for the occasion, there was an opportunity of
testing whether under proper conditions opportunity led to excess. I never
heard that it did. In the Franco-British Exhibition where reasonable
facilities of refreshment were also given, it is said--and I have no doubt
truly said--that though eight or nine million visitors passed through the
turnstiles, yet there was not a single case of drunkenness.
The problem is really a simple one, if we could only get administrators
and legislators, but especially the former, to look at it in the interest
of the man in the street. To the big brewery company beer is an effluent,
and the public house is the conduit pipe through which they pour it into
the public stomach. They have obviously no interest in ideal public
houses--and why should they? They are business men on business bent. The
teetotallers, on the other hand, regard the drinking of beer as a sin, and
any public house as the house of the Devil. Why should they help the Devil
to make his house sweet and attractive, and make the path easier for the
poor sinner who thirsts after beer? At present the average licensing bench
consists of "half and half"--to use a trade term--of these elements. If
there happen to be a few cranks on the bench who share the feather-headed
notions set down in this chapter, they can always be out-voted by a
combination of brewer and teetotaller. And for my part I think we shall
stick to our glorious institution of the "tied-house" just as long as the
working man intends to allow us and no longer.
When reformed public houses are taken up by the men who use the public
house, and when labour demands something better, the demand will be met.
For the teetotaller is nothing if not political, and when he sees where
the votes are, and not before, he will begin to see the error of his ways.
Meanwhile it will do him no harm to study the statistics such as they are,
and discover that the number of licenses in a district has nothing to do
with the amount of drunkenness therein, and to look back on the past
history of the public house and recognise that he has for many years been
the friend and ally of the undesirable brewer. The good citizen's policy
should be the provision of pure ale in wholesome surroundings, thereby
freeing the working class from the tyranny of the public house. To the
teetotallers who hinder such a policy I can only repeat Charles Kingsley's
message: "And I solemnly warn those who try to prevent it that they are,
with whatsoever good intentions, simply doing the Devil's work."
CHAPTER XIV
THE TWO PUBLIC HOUSES
2. THE WORKHOUSE.
Pauperism is the general leakage through every joint of the ship that
is rotten. Were all men doing their duty, or even seriously trying to
do it, there would be no Pauper.
* * * * *
Pauperism is the poisonous dripping from all the sins, and putrid
unveracities and God-forgetting greedinesses and devil-serving cants
and jesuitisms, that exist among us. Not one idle Sham lounging about
Creation upon false pretences, upon means which he has not earned,
upon theories which he does not practise, but yields his share of
Pauperism somewhere or other.
THOMAS CARLYLE: "Latter-day Pamphlets,"
"The New Downing Street."
The current cant of the day is that the alehouse leads to the workhouse.
From an architectural and hygienic point of view they have much in common,
and perhaps when one comes to spend one's last years amid the unloveliness
and official squareness and coldness of the workhouse one will be able to
look back with a sense of grateful pleasure to the more natural squalor of
the alehouse. It is a zoological fact that the human pauper, escaped for
the day from a workhouse, makes like a homing bird for the alehouse,
wherefrom we may draw the conclusion that the public for whom our two
public houses are provided by an intelligent State prefer the alehouse as
the lesser abomination of the two.
I often wonder if there is any nation in the world that possesses an
appetite equal to that of our own people for Royal Commissions and
reports. I admit that I have the craving strongly myself--not to sit upon
Commissions, for I am a working man and the amusement is one for Bishops,
Law Lords, philanthropists and the leisured classes--but I buy the reports
when they come out and sometimes read them--or some of them--or some part
of them--and marvel at the patience and energy and research that have gone
to the making of them, and sigh over the pity of it and the heart-breaking
inutility of the whole business.
Here is the report of the Royal Commission on the Poor Laws, 1909. The
blue cover of my copy is already turning grey with old age, the pencil
marks I made in the margin when I read it five years ago remind me of the
splendid reforms that spread themselves out in its pages and made one feel
that after all the world was a better affair than one had hitherto
believed. This report is indeed literally a monument of industry. It sat
from 1905 to 1909. There are over twelve hundred pages in the report
itself, which you can buy for the trumpery sum of five and six. The
evidence of it is contained in many volumes, and if your library is large
enough and you can afford to pay the price of a large paper set, you would
have reading enough for the rest of your natural life. And what has come
of it all? Practically nothing. It is not to be supposed that either the
report or the evidence has ever been read and studied by our ministers and
rulers. A few magazine and newspaper articles have been made of it, then
perhaps a book or two are written on the subject, the origin of which you
can trace to the report, and after that gradually the thing sinks by its
own cumbrous weight into the dead limbo of forgotten state papers. Yet if
there was a problem called the reform of the Poor Law in 1905 worthy of
the consideration of the good men and women who gave up a large slice of
their lives to working at it surely in 1914 there is still such a problem,
and some of it is at least as urgent as the questions over which our
political pastors wrangle and fight with such splendid energy. To write an
essay on the law and the poor in relation to the relief of distress would
be to traverse the whole ground of this famous report, but for my own part
I only want to call attention to an institution typical of all the faults
and errors of the Poor Law--the workhouse.
For if the rich have by their laws made a mess of the alehouse, what about
the other public-house--the workhouse? When you have no money to enable
you to take your ease at your inn the only other hostelry open for you and
your wife and children is the Poor House.
If there is one subject that has a more confused melancholy legal history
than another it is the story of the workhouse. No doubt much has been done
and something is doing, but it is difficult to see the real metal of the
reformer's work for the great heaps of Poor Law dirt that our forefathers
have left for us to clear away. For years the great English General Mixed
Workhouse has been looking for trouble. It has not a friend even in the
Local Government Board Office, and it has been condemned by all
right-minded men and women time out of mind as an abomination of
desolation standing where it ought not. Yet there it is. A blockhouse,
invented, built, and governed by blockheads, or at least beings with
wooden blocks instead of human hearts. It is mournful to read the Poor Law
history of the last eighty years and to learn how little we have done to
dry the tears of the widows and orphans who become, through folly,
misfortune, or ill-regulated industry, the wards of the State.
And to understand how such an institution came into our midst, it is
necessary to look back a bit upon the natural history of our Poor Law.
Whatever our failings may be as practical statesmen capable of translating
philanthropic theory into practical statutory right action, no one can
deny we are a great people for ideals. And the ideal of our Poor Law has
from earliest days been excellent. Coke in his Institutes tells us that it
was ordained by Kings before the Conquest that the poor should be
sustained by parsons, rectors, and parishioners, "so that no one should
die from lack of sustenance." That was, and still is, the ideal. No
citizen is to die from lack of sustenance, and yet surely since the
Conquest, and even recently in our own time, some perverse person has
escaped the careful eyes of the parsons, rectors, and parishioners, and
crept away to an obscure corner there to die of hunger against the
ordinance of Kings in that case made and provided.
Coke got this phrase from Andrew Horn, the author or editor of that
excellent treatise "La Somme appelle Mirroir des Justices," which he must
have compiled somewhere before 1328, though it was first printed in 1624.
Horn's "Mirror of Justices," is not, I believe, regarded with great
reverence by the learned as a law-book, but Coke enjoyed it and quoted it
with approval, and whether or not some of its phrases were ever sound law
I dare not express an opinion, but I will vouch for the excellence of
Andrew's sympathies.
In writing of the criminal law he tells us that "the poor man who to
escape starvation takes victuals to sustain his life, or a garment to
prevent death by cold, is not to be adjudged to death if he had no power
to buy or to borrow, for such things are warranted by the law natural."
I suppose it is doubtful if this was ever good common law to be acted upon
in all criminal courts, but one admires old Andrew for setting it down and
is glad to learn that even in the beginning of the fourteenth century
there were writers on law who were trying to mitigate the rigour of the
law in favour of the poor. They may not have actually stated what the law
exactly was, but they had shrewd ideas at the back of their minds as to
what it ought to be. If they confused the two themselves at times, and
this confused other learned ones in after times, maybe no one has been
much the worse for it. And when Horn laid down in his quaint dog French
that "Les povres fusent sustenuz par les persones rectours des eglises e
par les paroisiens," I fear he was writing of what ought to be rather than
what was the existing common law of the relief of the poor.
I am not at all sure that leaving the matter in the hands of parsons and
parishioners has not been the cause of most of the failure of the Poor
Law. If you have studied parsons and parishioners as a class, you do not
find them peculiarly desirous of providing sustenance for others. Queen
Elizabeth--a very practical lady, much thought of by parsons and
parishioners--was evidently of the opinion that you were asking too much
for the poor when you said that they should have sustenance for nothing.
She it was who enacted that in return for the ideal Saxon sustenance,
which was apparently to be freely given, the poor person was now to give
his work. Churchwardens and overseers, instead of giving free relief had
power to set to work children whose parents could not maintain them, and
make their parents work too if necessary. This was the beginning of the
system that made you chargeable on the parish, and gave the parish a right
to make you work off some of your chargeability.
In the eighteenth century came the interesting and disastrous experiment
of indiscriminate out-door relief. The farmer parishioner discovered he
could get a cheaper labourer by making his fellow parishioners pay some of
the wages in out-door relief. A pauper was a better tenant to have, since
the rent was paid out of the poor rates, a bastard child was an asset in
a household, and in 1821 overseers are known to have shared out the pauper
labourers among themselves and their friends and paid for the labour
wholly out of the poor-rate.
The scandals that had arisen led to the reform of the Poor Law in 1834,
which placed the administration in the hands of Commissioners who were to
see that the law was carried out, and by a natural swing of the pendulum
they turned from an indiscriminate doling out of rates to favoured paupers
to a system whereby the labourer was to find that the parish was his
hardest taskmaster so as to induce him to keep away from the overseers and
make parish relief his last and not his first resource. The ideal that the
Commissioners stood out for was that no relief whatever was to be given to
able-bodied persons or to their families otherwise than in well-regulated
workhouses. This was the beginning of the workhouse system which really
made the workhouse a kind of prison for those who could not find work
outside.
A great deal has been done since then, and especially in recent years, to
mitigate the lot of the poor. Old Age Pensions, Labour Exchanges, Medical
Insurance, Unemployment Insurance and the enlightened administration of
some of the better Boards of Guardians have made great inroads on the
negative inhumanity of the workhouse system. But unless it be in some of
the more vigorous northern centres Poor Law work and Poor Law elections
rouse but little enthusiasm. There are no doubt many men and women who
enter into the service of the Poor Law from noble motives and do useful
work, but the good they can do is very limited. The Central Authority
seems to have no very settled ideals, different boards run different
policies, some hanker after the flesh pots of labour cheapened by
indiscriminate relief, others clamour for lower rates obtained by the
inhumanity of not allowing anything but indoor relief. The guardians whose
voices are raised only in the interests of the poor are scarcely heard by
those who are clamouring for a lowering of the rates.
One thing all reformers seem to be agreed upon, and that is that the
General Mixed Workhouse with good, bad, and indifferent men, women, and
children herded together within its four walls is an abomination of
desolation. Maybe it did its work in the past as part of the evolution of
the Poor Law, dragging it out of a slough of corrupt and unwholesome
administration, but a time has surely come when we can apply more
scientific remedies to prevent the recurrence of such scandals, and there
is no longer a necessity to sacrifice the lives and happiness of decent
men, women, and children by the continuance of our workhouse system.
For what is a General Mixed Workhouse? It is an institution that has been
officially condemned since the Commissioners of 1834 went their rounds and
made their report. Crowded together in the workhouses of that day they
found a number of paupers of different type and character, neglected
children under the care of any sort of pauper who would undertake the
task, bastard children, prostitutes, blind persons, one or two idiots, and
an occasional neglected lunatic. There was enough humanity among the
Commissioners of eighty years ago to see that what was urgently necessary
was classification; the aged and the really impotent wanted care, peace,
and comfort, the children wanted nursing, supervision, and education, hard
working men and women in misfortune did not want to live in close
proximity to the "work shy" and the "ins and outs." "Each class," says the
Report, "should receive an appropriate treatment; the old might enjoy
their indulgences without torment from the boisterous; the children be
educated and the able-bodied subjected to such courses of labour and
discipline as will repel the indolent and the vicious." This was reported
of the workhouse in 1834, this is again reported of the workhouse in 1909;
there seems every reason to believe that it will be once more reported of
the workhouse in 2000.
Of course, many things are better to-day than they were eighty years ago.
A different standard of sanitation and hygiene has arisen throughout the
country and some of it has found is way into the workhouse. We have Poor
Law schools and Poor Law infirmaries that were unthought of in those days
and, as a whole, our buildings are clean and healthy; there is no
ill-treatment in them as there was in the days of Bumble; food, clothing
and warmth are at least sufficient; and in communities where there is an
exceptional Board and a superior master and matron much is done to hinder
the obvious evils of promiscuity. Nevertheless, the evil overshadows the
good, for it is the institution itself--the workhouse--that is as
radically unwholesome and unfit to-day as it was in 1834.
The evils of promiscuity cannot be exaggerated. In the larger workhouses
male and female inmates dine together, work together in kitchens and
laundries and in the open yards and corridors, with results that are
obvious. In a fortuitous assembly of such people the lowest common
denominator of morality is easily adopted as the standard. What a terrible
place is a General Mixed Workhouse to which to send children or young
people. One cannot read some of the passages in the report for which Mrs.
Sidney Webb and her colleagues were responsible without shuddering at our
own guiltiness and folly as ratepayers for allowing these things to be
done in our name. "No less distressing," they say, "has it been to
discover a continuous intercourse which we think must be injurious between
young and old, innocent and hardened. In the female dormitories and day
rooms women of all ages and of the most varied characters and conditions
necessarily associate together without any kind of restraint on their
mutual intercourse. There are no separate bedrooms; there are not even
separate cubicles. The young servant out of place, the prostitute
recovering from disease, the feeble-minded woman of any age, the girl with
her first baby, the unmarried mother coming in to be confined of her third
or fourth bastard, the senile, the paralytic, the epileptic, the
respectable deserted wife, the widow to whom out-door relief has been
refused, are all herded indiscriminately together. We have found
respectable old women annoyed by day and by night by the presence of noisy
and dirty imbeciles; idiots who are physically offensive or mischievous,
or so noisy as to create a disturbance by day or night with their howls,
are often found in Workhouses mixing with others, both in the sick wards
and in the body of the house."
This picture is foul and detestable enough, but it is perhaps in the
treatment of children that the workhouse system causes the greatest
unintentional cruelty. There are some 15,000 children actually living in
General Mixed Workhouses. A large proportion of these have no separate
sick ward for children, and no quarantine wards if there should be such a
thing as an outbreak of measles or whooping cough. Young children are to
be found in bed, with minor ailments, next to women of bad character under
treatment for contagious disease, whilst other women in the same ward are
in advanced stages of cancer and senile decay. Children come in daily
contact with all the inmates, even the imbeciles and feeble minded are to
be found at the same dining table with them. In this huge State nursery
the nurses are almost universally pauper inmates, many of them more or
less mentally defective. A medical Inspector's report in 1897, stated that
in no less than "sixty four Workhouses imbeciles or weak-minded women are
entrusted with the care of infants." One witness states that she has
"frequently seen a classed imbecile in charge of a baby." In the great
palatial workhouses of London and other large towns the Commissioners
found that "the infants in the nursery seldom or never got into the open
air." They found the nursery frequently on the third or fourth story of a
gigantic block, often without balconies, whence the only means of access,
even to the workhouse yard, was a lengthy flight of stone steps down which
it was impossible to wheel a baby carriage of any kind. There was no staff
of nurses adequate to carrying fifty or sixty infants out for airing. "In
some of these workhouses," they write, "it was frankly admitted that the
babies never left their own quarters, and the stench that we have
described, during the whole period of their residence in the workhouse
nursery."
Seventy years have passed since it was written, and yet the "Cry of the
Children" has as much meaning for us as it had for our grandfathers.
The young lambs are bleating in the meadows,
The young birds are sleeping in the nest,
The young fawns are playing with the shadows,
The young flowers are blowing toward the west--
But the young, young children, O my brothers,
They are weeping bitterly!
They are weeping in the playtime of the others,
In the country of the free.
And I am far from suggesting that all this evil is the result of any
personal inhumanity of Boards of Guardians, Masters or Matrons or of their
Inspectors and Governors in higher places. It is a matter in which each
individual citizen must bear his share of blame for he knows it to exist,
and he knows that he can have it altered if he cares to put his hand deep
enough into his pocket, or if he will forgo some of the political luxuries
dear to his party heart and give up the expenditure on them to the
betterment of little children.
Other European countries have managed to classify their poor. In France
the medical patients go to hospitals, the infirm aged poor have special
"hospices," and the blind and the idiots are separated from the little
children, each having their appropriate establishments. Of course we take
a great and to some extent justifiable pride in our Local Government
institutions, but as the world becomes more complex and difficult, it is
beginning to be seen that backward and less intelligent districts do not
get the full value out of legislation and rates that a progressive and
vigorous district obtains. It is one thing to pass an Act of Parliament
and another thing to get a local elective body to administer it
intelligently. If we could level up the worst administration of Guardians
to the best, a great deal would be done, but there is no manner of doubt
that the State ought to impose a time limit on the General Mixed Workhouse
and to enact that after such a date no Board of Guardians shall be allowed
to house men, women, and children in the unclassified barracks in use
to-day. If any body of Guardians do not feel capable of carrying out such
a decree the State must take their job over and do it for them.
For eighty years the law makers have been told by their own experts what
their workhouses were, and why they ought to be abolished and the fact
that the greatest sufferers from the iniquity are poor children who cannot
voice their complaints, and exist in dumb ignorance of the wrongs that are
done to them, does not make our position as the wrong-doers any less
deserving of damnation.
CHAPTER XV
REMEDIES OF TO-DAY
Ring out the feud of rich and poor;
Ring in redress to all mankind.
TENNYSON: "In Memoriam."
When Absalom cried out in a loud voice, "Oh, that I were made judge in the
land that every man which hath any suit or cause might come unto me, and I
would do him justice!" he was, as we should say nowadays, playing to the
gallery. Yet, sincerely uttered, what a noble wish it was. Let it stand as
an expression of the still unfulfilled ideal of judicial duty and public
service which we owe to-day to the poor of this country. Every man has not
as yet a judicial system that does justice to every man.
And I fear that Absalom's fine saying was only an election cry in his
campaign against his father, recalling to the voters perhaps David's
inconsistency in the theory and practice of justice in the matter of Uriah
and his wife. In those days the King, the Lawgiver, and the Judge were but
one person, so that to be made Judge was to be made Lawgiver and King, and
you not only administered the laws but made them as you went along.
Absalom was only an office seeker, but his election address contained a
noble sentiment.
Nowadays the Judges are merely servants of the law, like policemen and
bailiffs and the hangman. Nor does the King make the laws, nor are there
in theory any professional Lawgivers. The people--or at least so many of
the people as get on the register and trouble to vote--make their own
laws, or are supposed to do so. At least they have the power of choosing
their representatives and servants to make what laws they want.
If, therefore, a sufficient number of men in the street greatly desired
amendment of the law in this or that direction, I have no doubt it would
come about. But very few of the problems that trouble me come before the
eyes of the average man in the course of his daily life, and he is
scarcely to be blamed for not trying to mend that which he has not
observed is broken and worn out.
One man may know at first hand the story of a home ruined by reckless
credit and imprisonment for debt, another may know a cruel case of lives
blighted by our unequal divorce laws, a third may have seen the sad
spectacle of an injured workman sinking from honest independence to
neurasthenic malingering by reason of the poisonous litigious atmosphere
of the Workmen's Compensation Act.
I can never understand why men and women hunger after the tedious, unreal,
drab scandals portrayed in a repertory theatre when they could take a hand
at unravelling the real problem plays of life in the courts and alleys of
the city they live in. Real misery and wretchedness is at least as
pathetic as the sham article, and if you do your theatre-going in a real
police court you may learn to become a better citizen.
Not that I advise all men and women to spend their leisure in these
squalid surroundings. I recognise that the man in the street cannot at
first hand study all these problems, and that is why I have set down
something of the disabilities of the poor under the law, in the hope that
my political pastors and masters may take an interest in these domestic
reforms.
There are many, I know, who think that a judge, like a good child, should
in matters of this kind be seen and not heard. But for my part I am not of
that opinion, for if a judicial person knows that the machine he is
working is out of date and consuming unnecessary fuel, blacking out the
moral ether with needless foul smoke, and if, moreover, he thinks he knows
how much of this can be put right at small expense, should he not mention
the matter not only to his foreman and the frock coat brigade in the
office--who are the folk who supply the bad coal--but to the owner of the
machine who has to pay for it and live with it--the man in the street?
Now there is a great deal that might be done to make the law less harsh to
the poor without any very elaborate legislation, and certainly without any
of those absurd inquiries and commissions which are the stones the
latter-day lawgivers throw at the poor when they ask for the bread of
justice.
I like to read of Lord Brougham, as far back as 1830, shivering to atoms
the house of fraud and iniquity known as the Court of Chancery. I like to
picture him pointing his long, lean, skinny fingers at his adversaries,
and to see the abuses he cursed falling dead at his feet. Could he have
had his way, the very County Court system which we have to-day would have
sprung into being within a few months of his taking his seat on the
woolsack, and he would have instituted Courts of Conciliation for the
poor, to hinder them from wasting their earnings in useless costs.
But the petty men who walked under his huge legs and peeped about were too
many for Colossus. And, to be fair to the fools of his time, the great
giant was not himself a persuasive and tactful personality. Sane, wise,
and far-reaching as were the legal reforms he propounded, too many, alas,
still remain for future generations to tackle.
Pull down your Hansard debates of to-day, read them if you can, and say
honestly in how many pages you find political refreshment for the man in
the street. The small reforms of existing laws that weigh hardly on the
poor are worth at least as much of parliamentary time as many of the full
dress debates about ministers' investments and tariff reform and the
various trivial absurdities that excite the little minds of Tadpole and
Taper, but have no relation whatever to the works and days of the power
citizens of the country.
And if I were called upon to draw up a new Magna Charta for the poor--and
I could draft all the reforms I want in a very small compass--I should put
at the head of the parchment--"Let it be enacted that no British subject
may be imprisoned for a civil debt." I do not believe that if Members of
Parliament would vote on this subject as I know many of them would really
wish to vote that there would be a dozen voters in the "No" lobby, and I
am firmly convinced, though here I must own my parliamentary friends are
in disagreement with me, that they would not injure their hold on their
constituencies.
If there were any machinery in our unbusiness-like Parliament for dealing
with social subjects on a non-party basis, imprisonment for debt would
have been abolished long ago. The proposal is, however, a proposal to
ameliorate the bottom dog, and the human bottom dog is poorly represented
in the great inquest of the nation. The foreign bird whose plumes adorn
the matinee hats of our dearly beloveds, the street cur who might find a
sphere of utility in the scientist's laboratory, the ancient cabhorse who
crosses the Channel to promote an entente cordiale by nourishing the
foreigners--all these have friends, eloquent and vigorous for the lives
and liberties of their especial pets; but the poor man who goes to gaol
because he cannot pay the tally-man has few friends.
There is no getting away from the fact that political influences are
against the abolition of imprisonment for debt. I remember many years
ago--more than twenty, I fear--a learned County Court judge laughing at
the eagerness with which I threw myself into a newspaper campaign against
imprisonment for debt. "I, too," he said, "used to think I should live to
see it abolished, and you think that merely stating unanswerable
arguments against it is likely to lead to results. Well, I used to think
that way about it at one time, but it is not a matter of argument at all;
it is all a case of vested interests and nervous politicians. Some day
another Lord Brougham will come along and sweep the thing away as he swept
away the old Chancery Courts and many another legal abuse, but I shall
never see it done, and unless you are another Methuselah you will never
see it done." And then with a laugh of mock despair he added:
Logic and sermons never convince,
The damp of the night drives deeper into my soul.
I am beginning to think that my old friend spoke with the tongue of
prophecy, and he was certainly right about the vested interests.
The three parties in English politics have a curious attachment to
imprisonment for debt. They do not allude to it much on the platform or in
the House, but it is there at the back of their minds all the same. The
Conservative opposition to the proposal is the more straightforward and
natural. Here is a system which enables the well-to-do to collect money
from the poor, it encourages credit giving, and is thought to promote
trading, it causes no inconvenience to the wealthier classes, it exists
and always has existed, and it works well. Why should it be altered,
especially as there is no great demand for change, and change is in itself
an evil thing? Let us leave well alone. The Liberal, off the platform, is
much in agreement with the proposition of abolition, his difficulties are
purely practical difficulties. He finds among his best supporters,
drapers, grocers, tally-men and shop-keepers, most of them Nonconformists
and keen Radicals, and all of them credit givers, carrying on their
businesses under the sanction, more or less direct, of imprisonment for
debt. These traders are not only voters and supporters, but they are
centres of political influence. I remember in the South of England, thirty
years ago, being told of a grocer in a small village who was a man whose
support it was necessary for the candidate to obtain. I went along to see
him and he agreed to support my friend. He was worth over two hundred
votes, all of them in his debt and liable to be summoned at any moment for
more than they could pay.
In politics it is absurd to expect individuals to kick against the pricks,
and I do not know of any politician who, deeply as he may believe in the
justice and expediency of abolishing imprisonment for debt, has ever cared
to take up the matter and place it prominently before his constituents in
the hope of being able to convince them that it would make for the
greatest happiness of the greatest number. The general belief seems to be
that the influence of the shopkeeping and travelling trading classes would
be used against such a Quixote, and he would receive a severe warning to
stick to the ordinary hack lines of political talk and not risk his seat
tilting at windmills.
The attitude of the Labour party is even more peculiar. Outwardly and
individually they, of course, being more thoughtful and experienced about
the wants of the poor, agree very heartily that imprisonment for debt is a
class institution which should be abolished. But they certainly show no
great enthusiasm in taking a hand at working for its abolition. This is
partly due, no doubt, to the fact that they are business men and not
theorists and have other and nearer work to do. They would, I make no
doubt, support any measure of abolition, but it is essentially a legal
reform and they would wait for some legal authority to initiate it.
There is too, undoubtedly, at the back of the Labour mind the idea that
imprisonment for debt may be a very present help in time of trouble. In
the Select Committee of 1893 Mr. William Johnson, a miner's agent, gave
evidence in favour of imprisonment for debt; he asserted that nine-tenths
of his men did not desire its abolition and were in favour of its
continuance. Later on he pointed out that in case of sickness or in the
case of non-employment, "and probably in the case of strikes," credit
given under the sanction of imprisonment for debt would be useful.
Unemployment and sickness are now largely dealt with by insurance, and
from a public point of view the idea that strikes should be financed by
the small tradesmen and, in case of their bankruptcy, ultimately by the
wholesale trade, is not an attractive one.
The reformer must always expect to find selfish class interests up against
him, but it seems to me that the desires of those who want to finance
strikes on credit and the rights of those who at present are selling
shoddy on credit at extravagant prices ought not to weigh against the
general public welfare. If, as I venture to think, the arguments against
the last step in the abolition of imprisonment for debt are as valid as
they were on former occasions, and if, as must be admitted, no evils have
followed on the partial abolitions of imprisonment already made in 1837
and 1869, then the mere fact that the public is apathetic on the subject
and that members of Parliament are apprehensive of interested opposition
is not of itself sufficient excuse for those who are in authority in legal
matters refusing to complete the reform by abolishing imprisonment for
debt for the poor as it has already been abolished for the rich.
Of course, the mere abolition of imprisonment for debt would not to my
mind be a sufficient protection of the poor unless side by side of it were
enacted a homestead law greatly enlarging the existing exemptions from
execution of the tools and chattels of a working man. The idea is that the
home furniture necessary to the lives of the human beings forming the home
should be incapable of being seized for debt. Make the limit twenty pounds
or whatever sum you please but clearly enact that sufficient chattels to
furnish a reasonable house are exempt from execution. In America and
Canada these homestead laws exist and work well. It occurs to our cousins
across the pond that it is a better thing to keep a home together than to
sell it up for an old song to pay official fees and costs and something on
account to the foolish creditor. The returns from a poor auction of a
workman's household furniture are miserable reading. The landlord by
distress or the tally-man by execution may get a few shillings for
himself and pay away a few more shillings to bailiffs and others, but the
cost of it to the poor is cruel. Tables and chairs and perhaps a sideboard
that represent months of savings and long hours of labour are in a moment
of misfortune snatched away from their proud possessor and his home is a
ruin.
The homestead laws in Canada, though not the same in every State, go much
further than any laws we possess to prevent the breaking up of a home. In
Manitoba, for instance, executions against lands are abolished, though
land can be bound by a judgment by registering a certificate, and the
household furniture and effects, not exceeding 500 dollars in value, and
all the necessary and ordinary clothing of the debtor and his family are
exempt from execution. The actual residence or house of a citizen to the
extent of 1,500 dollars is also exempt. Imagine what an incentive it would
be to the purchase of house property and furniture if a man were to know
that his cottage to the value of three hundred pounds, and its contents to
the extent of one hundred pounds, would always be protected from bailiff
and sheriff. What a check, too, such legislation would be on the reckless
way in which credit is given.
One exception to this rule seems to me very fair. There is no exemption of
anything the purchase price of which was the subject of the judgment
proceeded upon. Thus a man cannot buy a sideboard, refuse to pay the price
of it, and claim exemption of the sideboard from execution by the
furniture dealer who sold it, though he could claim exemption of the
sideboard against a money lender who had obtained a judgment against him,
and wanted to recover his debt by sweeping his home away. Here in England
people are driven to shifts and evasions by means of bills of sale, goods
put in the wife's name, and a number of other semi-dishonest devices to
protect their homes. The sight of a home broken up and the furniture that
has cost so many years of saving slaughtered at a third-rate auction for
little more than the costs and fees of the bailiffs is no great incentive
to a working man to spend his savings on good, home-made chattels. Cheap
foreign shoddy on the hire system is the order of to-day, and as a mere
matter of encouragement of the better class home trade in furniture,
carpets, drapery and household goods generally, we might consider the
advisability of taking a leaf out of the Statute book of Manitoba.
That debt should never be allowed to utterly destroy a family and a home
seems to me such a clear and sane idea that it has always been a puzzle to
me to try and understand the point of view of those who cannot see the
matter in the same light. I know it is a degrading confession for anyone
with even the pretence of a judicial mind to have to make but it is best
to be honest about it. I rather gather I am a little obsessed, or
abnormal, or feeble-minded, or senile perhaps nowadays about anything that
touches home or home life.
The home to me is the great asset of the nation. I do not want to see the
home superseded by State barracks or common hostels or district boarding
schools. On the contrary, I think individual homes are good for the
development of citizens. For this reason I would protect the home from
ruin by an extravagant husband or an extravagant wife in the interests of
the children, who are the next generation of citizens, and whose welfare
is, therefore, a debenture of the State.
Nobody would think of distraining on a pheasant's nest, or breaking up the
home of a couple of partridges, or imprisoning the birds at breeding time
in separate coops and cutting down their food merely because one of the
birds had run up a bill for too many mangel wurzels or the other had run
into debt for some fine feathers beyond her means.
Pheasants and partridges are too valuable to be so treated. Their nests
are protected from any distress or execution by poachers, and their bodies
are protected from arrest by watchful gamekeepers under strict laws. I
want to insure under my reformed laws that the human nest should be
protected in the same way, and that judges should not only be allowed, but
ordered, to take care that the home is not devastated by human misfortune
or even by improvidence. We want Game Laws for the poor. In future our
legislators must treat them as game birds--as indeed most of them are--and
not as vermin to be devoured, they and their children, by the owls and
kites of the underworld in which they live.
And the second clause of my Magna Charta would be of almost simpler
dimensions than the first. It would run: "Let it be enacted that the
County Courts have jurisdiction in Divorce." This would at once place rich
and poor on an equality that is not yet even aimed at. I should not
complicate this matter with the overdue reforms proposed by the Divorce
Commission, much as I should like to see those enacted. They are matters
of general interest that have waited for so many years that there is not
much hardship in holding them back further, but the institution of a new
tribunal of divorce is of vital and immediate importance to the poor. The
Act would be a practically unopposed act of one clause. It would only
touch one vested interest, the London lawyers of the Divorce Court, and it
would greatly please their brethren throughout the country.
All details of costs and machinery could be left to rule committees, as is
the common practice in other and more important matters that have come to
the County Courts, such as Admiralty and equity jurisdiction, and a
hundred other really difficult and complicated matters.
And then would follow a lot of simple but important reforms that really
only need the stroke of the official pen that is never made until the man
in the street rises in his wrath and knocks the official funny-bone on the
official desk and wakens him up to the fact that it is officially time to
do some official act.
For, of course, police court fines must be cut down and time given to pay
them, and police court costs must be paid by the community, and
bankruptcies must be made available to the poor, and the Treasury must
cease to rob the poorest bankrupts of £13,000 a year, and the limit of
such bankruptcies must be raised to £250, so that poor little business men
and their creditors may get what there is, rather than it should all go in
costs and fees and payments to lawyers and accountants, who must give up
sparrow shooting and hunt for bigger game.
And, above all, we must remember to engross in big black text on our
parchment what Joseph Chamberlain said about his Workmen's Compensation
Act, that it is to be worked without lawyers, or at least, that it is to
be made one of the judge's duties to see employer and workman first and
endeavour to bring them together before he issues his fiat that the affair
is "fit for litigation."
This little programme surprises me by its moderation. How any society of
business men could palaver about it in any Palaverment for more than a
week passes my comprehension. I commend my new Magna Charta to a party in
want of a programme. If they carried it in the first week of their
Ministry and then adjourned for seven years to see how the world went on
without them, they would be the most sensible and popular Government since
the days of Alfred the Great.
CHAPTER XVI
REMEDIES OF TO-MORROW
Happy he whose inward ear
Angel comfortings can hear,
O'er the rabble's laughter;
And, while Hatred's faggots burn,
Glimpses through the smoke discern
Of the good hereafter.
Knowing this, that never yet
Share of Truth was vainly set
In the world's wide fallow;
After hands shall sow the seed,
After hands from hill and mead
Reap the harvests yellow.
Thus, with somewhat of the Seer,
Must the moral pioneer
From the Future borrow;
Clothe the waste with dreams of grain,
And, on midnight's sky of rain,
Paint the golden morrow!
JOHN GREENLEAF WHITTIER:
"Barclay of Ury."
I remember in my youth being told in the words of Marcus Aurelius: "Be
satisfied with your business and learn to love what you were bred to." At
the time I may have resented the advice, but I have lived long enough to
see the wisdom of it. Personally, at that period, I should have liked to
have been an engine driver or at least a railway guard; later on in years
I had thoughts about carpentering; and in course of time water-colour
painting, etching, playing the fiddle, and even golf seemed possible of
attainment. But when you really learn that these higher ranks of life are
closed to you by your own natural limitations and find out that your
business in life is to be a drab official in an inferior court, then
Marcus Aurelius is indeed grateful and comforting.
One can, after many years of it, learn to love even the County Court. You
have much the same outlook and experience of life and human nature as the
old bus driver. Every day brings you new passengers who accompany you for
a few minutes on the journey of life, and you get to know many old ones
and have a friendly crack with them over their domestic troubles.
Moreover, at moments your daily job brings you in near touch with the joys
and sorrows and trials and daily efforts of poor people, and once in a way
perhaps you can be of use, which to a child and to a grown-up who has any
of the child left in him is always a jolly thing. When you have really got
quite accustomed to enjoying your work the natural garrulity which your
friends lovingly attribute to senile decay stimulates you to make them
partners in your joy. The narrow circle in which you spend your daily life
has become your only world. You find yourself quoting with approval "with
aged men is wisdom, and in length of days understanding," and you begin to
believe you are the only person who really does understand. Childlike, you
find dragons in your path that you want to slay, pure and beautiful souls
are oppressed, and you fancy that you can release them from bondage; there
are giants of injustice and persecution in the land whose castles you mean
to turn into peoples' palaces. Then you sit down to write your fairy tales
again--but no longer for the children nowadays, since they are all grown
up. These fairy tales are for journalists, philanthropists and politicians
who make fairy tales and live on fairy tales; and believe me, there are no
more essential fairy tales than stories about legal reform. Only to the
writer are they real, and to one or two choice child spirits who never
grow old and still believe in a world where everyone is going to live
happily ever afterwards. The way in which Master Ogre, the Law, swallows
up the poor is quite like a real fairy tale, and it would have even a
happier likeness to the fiction of the nursery if we could tell of a Jack
the Giant Killer cutting off the wicked monster's head and rescuing his
victims.
I am under no delusions that this little volume is going to do any
particular good in any particular hurry. I know by historical study that
the way of reform lies through official mazes of docket and précis and
pigeon holes, that legislative decisions are hatched out in some
bureaucratic incubator that the eye of common man has never seen. I
reverence the mystery that surrounds these high matters. It is really good
for us that we should know so little of the reason why things are no
better than they are. And then how good our rulers are to us in the matter
of Royal Commissions and Blue Books! At our own expense we may really have
as many of these as we ask for. I wish I could get folk to understand
what a lot of sterling entertainment there is in blue books. All the
earnest ones, all the clever ones, all the cranky ones of this world set
down their views and opinions on any subject at any distance from that
subject, and wrangle and argue and cross-examine each other, and then the
good Government prints it for us all verbatim and sells it to us very very
cheap. Practically, I dislike the shape of a blue book, and æsthetically
they do not match my library carpet when they are lying around, which is a
disadvantage, but I must own that if I were banished to a desert island I
would rather have my blue books than much of what is called classical
literature.
The evidence is the best reading--and when one comes to the final report I
generally find the minority report to be the thing one is looking for, as
it is usually the minority who want to do something. But in some subjects,
divorce for instance, things are moving so hurriedly during these last few
hundred years that actually there is a majority in favour of legislation
and reform.
Not that this makes the slightest difference as to any actual reform being
done. The feeling of security that nothing is ever going to come of it
makes it a safe and reasonable thing to print the most advanced views at
the expense of the State. The physical weight and size of these volumes
have been carefully considered and the whole format cunningly designed to
repel readers. Nothing ever comes of blue books, and I do not suppose
anything ever will come of them. When I turn over their dreary pages I
find myself humming Kipling's chorus--
And it all goes into the laundry,
But it never comes out in the wash,
'Ow we're sugared about by the old men
('Eavy sterned amateur old men!)
That 'amper an' 'inder an' scold men
For fear o' Stellenbosh.
Dickens had the same impatience of the heavy sterned brigade and invented
his immortal Circumlocution Office, and doubtless genius is entitled to
deride these substantial State institutions. Personally, I find them very
English and valuable. The more energetic of us may take our pleasure in
giving friendly shoves to these heavy sterned Christians, but their inert
services to the community are not to be undervalued. But for this
immovable official wall who knows what reforms, unnecessary and
ill-advised, might have been carried through. If Lord Brougham could have
had his way much that I am writing about to-day would long ago have
happened. The heavy sterned ones sitting on the lid prevented the opening
of the Pandora box with its promises of affliction for the human race in
the shape of legal reform. They have left these things over until to-day
and brought me amusement for idle vacation hours. At least, let me be
thankful to them and sing their praises.
I remember when I was planning out these chapters being the victim of a
most terrible nightmare. A newspaper with a King's speech in it was
thrust before me and every one of the reforms I had already written about
was promised to be passed within the Session. I remember smiling in my
dream, knowing what parliamentary promises were, and then as I was gliding
down the Strand a silent phantom newsboy handed me an evening paper. There
it was in black and white, every bill was passed--there was nothing left
to write about. I awoke with a cry. It was a terrible shock, and it was
some moments of time before I could realise that such a thing was
absolutely impossible. And, of course, when you think of the large number
of things that you want done and recollect that nothing ever is done that
a man really cares about in his own lifetime it was absurd of me, even in
a dream, to believe that anything was coming between me and my little
book. Indeed, I have hopes that for many years to come it may be regarded
as a popular primer about legal reform for future generations who wish to
while away idle hours in the luxury of vain imagination.
I should like to interest the man in the street about legal reform and to
see him at work remedying some of the more obvious of the existing abuses
I have referred to, but I am under no delusion that such reforms would
bring about the millennium. It is good to do the pressing work in the
vineyards on the slopes of the mountain, but it is permissible for poor
human man to have his day off now and then to climb on the hilltops and
gaze out on the limitless ocean of the future and indulge in wild surmises
of the after-world.
The remedies of to-day are really tiresome parochial affairs compared to
the remedies of to-morrow and hardly seem worth troubling about when one
considers that even if you passed them all this year in a century or two
your new statutes would be out of date and only fit for the scrap heap.
Bacon tells us that Time is the greatest of all innovators, but he does
not explain to us why, unlike all human innovators, Time is in no hurry
about it. I have quite distinct beliefs, which to me are certainties, as
to how Time will reconcile the law and the poor in the centuries to come,
when our social absurdities and wrong-doing will not even be remembered to
be laughed at. The law will never be a really great influence for good
until it is utterly conquered, put in its proper place in the world and
based on the principle of Love. In other words, when the Law of Love
receives the Royal Assent no other law will be necessary.
Nineteen hundred years ago a new principle was introduced into the world.
It was the principle of unselfishness, and its apostles were labour men.
In relation to man's personal life it has made some progress, but in
practical social politics its business value is not yet fully recognised.
Still, a beginning has been made, and that old snail, Time, is doubtless
satisfied with the pace of things. Let us remember hopefully that two
thousand years ago unselfishness as a basic principle of life, doing to
others as you would be done by, promoting peace and good will instead of
strife and ill will--these ideas as business propositions were as unknown
then as railways, telegraphs, motor cars, and aeroplanes. A vision of
to-day would have been a wild fairy tale to Marcus Aurelius, a vision of
two thousand years hence would be incomprehensible to us.
One does not mean, of course, that unselfishness had never before been
preached as an ideal, but a society based on the common quality of all its
members placing the interests of others above their own was a new notion,
and the novelty of it has not yet worn off. Nevertheless, love and
unselfishness have achieved sufficient lip-service already to make me
hopeful of their future, and I foresee a time when they will be the
foundation of the laws of the world, and the preamble to every statute
will be "Blessed are the Peacemakers."
Some day when the Chinese send over a mission to heathen England,
missionaries will go about the country destroying all the boards on which
are written the wicked words "Trespassers will be Prosecuted." But I hope
we may not have to wait for a foreign mission to teach us our duty.
This phrase, typical of the law of to-day and eloquent of the claims of
the rich to fence the poor off the face of the earth, must utterly
disappear when the new spirit of the law is made manifest. We have no
sense of humour. On Sunday we intone to slow music our desire to forgive
our enemy his trespasses; on Monday we go down to our solicitor to issue a
writ against him for the trespass we have failed to forgive. The old
notice threatening prosecution is really already out of date. It ought, of
course, to read, "Trespassers will be Forgiven." For my part if I met
with such a notice, I should hesitate before I walked across the owner's
land; whereas to-day, when I am threatened with prosecution, my bristles
go up, I scent a right of way, and as like as not proceed in my
trespassing out of pure cussedness. There are a lot of other folk besides
myself who are built that way. I know a little girl of five whose chief
glory in life is to walk "on the private," as she calls it, when the
park-keeper is not looking. It is that constant "Don't!" and "You mustn't"
that rouses the rebel in us. The less forbidding there is, the easier the
path of obedience.
I hold no brief for trespassers. I know it is naughty to trespass. But in
the present state of my evolution there is so much of the original monkey
in me that when that "monkey is up," to use a phrase dear to Cardinal
Newman, I go astray. So do many of my best friends.
I have the same belief in the evolution of the moral world and its onward
movement that I have in the revolution of the physical world and its
rotary movement. For this reason I expect my great-grandchildren of two
thousand years hence to be much better behaved than I am. You can see it
coming along in your own grandchildren unless your sight is getting dim.
And I am quite clear that my own manners are an improvement on my great
grandfathers, who lived in caves, and, when they had disputes, made it
clubs, and battered each other strenuously until it was proved which had
the thickest skull, when he of the toughest cranium was adjudged to be in
the right.
The vigorous legal procedure of the cave men sounds laughable enough to us
nowadays, but does anyone think that two thousand years hence superior
unborn persons will not be smiling superciliously over the history books
that record the doings of our judges, our hired counsellors, our sheriffs,
our gaolers, and our hangman?
It was only in the recent reign of good Queen Bess that the ordeal of
battle was given up. The abolition of that old-world lawsuit must have
been painful to the conservative mind. And there was a lot to say for it.
From a sporting point of view, what could be better than to go down to
Tothill Fields in Westminster, as you might have done in 1571, to see A.
B. battering C. D. to the intent that whichever knocked the stuffing out
of the other gained the verdict?
If you look at it from a healthy, open-air point of view, maybe it was
better for everybody than sitting in a stuffy court and listening to two
bigwigs splitting hairs to the resultant financial ruin of one of their
clients. One reason, no doubt, that trials by battle were abolished was
that they gave the poor at least as good a chance as the rich.
I remember a good story--it is an old one, but still quite good--of a
noble lord and landowner who net a collier trespassing in the
neighbourhood of Wigan.
"My good man," said my lord, "do you know you are trespassing?"
"Well, wot of it?"
"You have no right to be walking across my land."
"I'm like to be walking across somebody's land, I've noan o' me own."
"Well, you must not come across mine."
"How do I know it is yours, and who gave it you?"
"Well, this land," replied the noble lord, "belonged to my father and
grandfather and his father for many generations."
"But how did thi' first grandfeyther get it?" persisted the collier.
"Well, as a matter of fact, it was granted by the King for services
rendered. I may say," my lord added proudly, "that my ancestors fought for
this land."
"Did they, now?" said the collier, "then tak off thi' coat an' I'll feight
thee for a bit."
One can see from this anecdote that it would never do to return to ordeal
by battle. And though individual fighting by violence to assert rights is
out of date and not permissible, yet in the affairs of the collection of
human beings known as nations the horrible waste of armaments and the
menace of war are living evidence of the ultimate tribunal to which we
still appeal.
No one really believes that force and violence are sane remedies for the
evils of the world, and the whole history of mankind shows a gradual
decline in the practice and use of them. In each succeeding generation our
children will be nearer the truth than we are, and further on the journey
towards the end when the rule of Love and Unselfishness will be the only
law of the Universe, and will enforce itself without judges, juries, or
policemen.
And lest anyone should say that all this is the mere vague raving of
prophecy, let me set down a short, practical catalogue of what I expect
the remedies of to-morrow to bring about in, say, two thousand years. In
the first place, the disabilities of the poor that I have written about in
these pages will all have been abolished and forgotten. Crime will be
regarded as a disease, and it will be as inhuman to treat the criminal
with harshness as it is to-day to torture lunatics after the methods of a
hundred years ago.
Every citizen will have a right to sufficient food, clothing, housing, and
entertainment in exchange for reasonable hours of work. The spirit of
humanity will so greatly have been improved that it will be very little
necessary to extort proper conditions for the lives of citizens or to
protect the weak from exploitation by the strong. Litigation and war will
be out of date and replaced by conciliation and arbitration. In a word,
the reign of love and unselfishness will have commenced.
We may not even see my beautiful world from afar, but this need not dismay
us, for we know it is there, and we know that every effort we make to
serve the cause of the poor helps to clear the path through the desert
along which the coming armies of victory will march in triumph. The cause
of the poor has always been the greatest cause in the world, and the
generation that has at length understood it, and fought for it and won it,
will find itself standing at the open gates of the promised land.
INDEX
Abinger, Lord Chief Baron, his judgment in _Priestley_ v. _Fowler_, 77,
78, 95, 96
Ademantus, 254
Administration orders in bankruptcy, 119-124
Alehouse, the, 252-270
"Alton Locke," slums described in, 238
American judiciary and working classes, 93, 94, 95;
and workmen's compensation, 103
Appeals, cost of, 175
Artisans Dwelling Act, 1875, 241
Asquith, Right Hon. Herbert Henry, on workmen's compensation, 87
_Attorney-General_ v. _The Edison Telephone Co._, 83
Bacon, Lord Chancellor, 305
Bail, unnecessary refusal of, 226;
statistics of this, 228, 229
Balfour, Right Hon. Arthur James, on intemperance, 255, 256
Bankruptcy, 106-124;
failures due to extravagance, 115-117;
not open to the poor, 118;
administration orders, 120;
exorbitant Treasury fees, 122-124
Bell, Alexander Graham, 82
Belloc, Hilaire, 254
Bentham, Jeremy, on legal evidence, 192
Bias in judges, 96-103
Bills of Sale Acts, 168
Black Act, 1722, 218
Blasphemy Laws, 199, 200
Blue Books, 301, 302
Bradlaugh, Charles, 199
Bridewell, the, 9-10, 213
Bright, John, 99
Brougham, Lord, on imprisonment for debt, 48, 49;
on the Evidence Amendment Act, 193;
on Chancery reform, 287, 288
Butler, Samuel, 211
Cadaval, Duke de, arrested on mesne process, 46
_Capias ad satisfaciendum_, 37, 39
Carlyle, Thomas, on history, 21;
on language, 108, 110;
on fools, 153;
on land question, 250
Cattle maiming, 216-219
Chamberlain, Right Hon. Joseph, on workmen's compensation, 87-90;
on administration orders, 119, 120;
is housing work in Birmingham, 241
Chancery Court, and Lord Brougham, 287
Children, treatment of, in workhouses, 280, 282
Closing time, regulations for rich and poor, 263, 264
Clough, Arthur Hugh, 169
Cobbett, Sir William, 186
Coke, Sir Edward, Chief Justice, his description of _peine forte et
dure_, 11, 201;
on early Poor Laws, 274, 275
Collier, Sir Robert, on imprisonment for debt, 55, 56
"Compleat Constable," The, 4-7
Conciliation in trade disputes, 110
Conciliation, preliminary of, in France, 187
Corporal punishment, advisability of, discussed, 209-212
Costs in police court, abolition desirabie, 222
Cottenham, Earl of, his Insolvency Bill, 1837, 45-47
County Court procedure, expense of, 184
Court of Criminal Appeal Act, 1907, 194, 197, 198
Crabbe, on lawyers, 183
Cranmer, Thomas, Archbishop of Canterbury, on divorce, 125, 126, 127
Crime and punishment, 189-212
Criminal Appeal, Court of, 189
Criminal Evidence Act, 1898, 194-196
Criminal Law Amendment Act, 210
Cruelty to Animals Bill of 1811, 219
Davey, Lord, on workmen's compensation, 92
Deane, Mr. Justice Bargrave, on divorce, 137
Debt, imprisonment for, Old Testament view of, 22;
New Testament view of, 24;
Greek law of, 27;
Roman law of, 31;
in Papal Rome, 34;
in time of Henry III., 36-39;
in eighteenth century, 41, 43;
in "Pickwick," 45;
mesne process, 45;
debates on, in 1837, 46;
in 1869, 50-57;
evils of, 59-68;
arguments against abolition, 69-71;
none in Germany, 71;
nor in France, 72;
wastefulness of system, 72;
encourages improvidence, 157-160;
in police courts, 220, 222;
political views on abolition of, 288-293
Debtors Act, 1869, 41, 49-57, 158
Debtors' prisons, 41-47
Dendy, Mr. Registrar, on divorce in County Court, 146
Denman, Lord, speech on imprisonment for debt, 46
Dickens, Charles, on imprisonment for debt, 45;
on the living wage, 108;
on the evidence of prisoners, 194;
on slums, 238;
on inns and innkeepers, 257-259
D'Israeli, Benjamin, slums described in "Sybil," 239-242
Distress, law of, 233
Divorce, 125-151;
in time of Edward VI., 125-128;
Act of 1857, 131;
hard cases of poor, 133-141;
necessity of using County Court, 144-146, 297
Dogberry, abolition of discussed, 223, 224
Edalji, 217
Edward VI., 126
Edward VII., 126
Eliot, George, 174
Elisha, and imprisonment for debt, 22, 23
Elizabeth, Queen, her Poor Law, 276
Employers Liability Act, 1880, 86
Erewhon, treatment of crime in, 211
Erskine, Lord, and cruelty to animals, 219
Eviction, 234
Evidence, prisoners right to give, 193;
Criminal Evidence Act, 1898, 194;
of Crown not available to prisoner, 207-209
Exekestides, 27
False pretences, 202, 203
Fielding, as a magistrate, 213
_Fieri facias_, 39
Fines in police courts, unfair incidence of, 221, 222;
time for payment of, 224;
statistics of, 225;
abolition of, 297
France, no imprisonment for debt, 72;
divorce law, 143, 147;
preliminary of conciliation in, 187;
poor law, 283
Fuller, on burning of heretics, 200
Geographical distribution of crime, 216
Germany, no imprisonment for working men debtors, 71;
divorce in, 147
Gilbert, Lord Chief Baron, 37, 39
Goldsmith, Oliver, 13, 14
Gordon, Cosmo, Archbishop of York, on divorce, 128
Gordon, Mr. Justice, of Australian Labour Court, 110
Governor of gaol, charity to poor debtors, 65
Grand jury, 181
Grantham, Hon. Mr. Justice, 101;
on poor prisoners defence, 196
Gray, Professor John Chipman, of Harvard, 80;
on judge-made law, 81
Haldane, Viscount, 66, 215
Hale, Sir Matthew, Lord Chief Justice, 100
Halsbury, Earl of, on workmen's compensation, 92
Hard labour for unconvicted prisoners, 227, 228
Headlam, John, an old-fashioned Dogberry, 227, 228, 229
Herschell, Lord, on prisoners giving evidence, 195
Hogarth, 10, 15
Homestead laws of America and Canada, 293, 294, 295
Hood, Tom, 108
Horn, Andrew, his "Mirror of Justices," 275
Housing question, 236-251;
Royal Commission, 1884, 242;
Select Committee, 1902, 244
Identification of prisoners, present methods criticised, 230, 231
Imprisonment for debt. _See_ Debt.
Innkeeper, independence of, 258
Jeremiah, and the living wage, 108, 113
Jessel, Sir George, on imprisonment for debt, 50
Johnson, Dr., 4;
on the poor in England, 13, 14;
on public executions, 15, 16;
on imprisonment for debt, 70;
on the formation of laws, 70
Johnson, William, miners' agent, his views on imprisonment for debt, 292
Judge-made law, 79-85
Judgment summonses, statistics of, 60, 63
Judicial irrelevancy, 180
Judson, Frederick N., author of "The Judiciary and the People," 94
Justice of peace, utility of lay justices, 231
Kelvin, Lord, 82
Kingsley, Charles, 108;
on slums, 238;
on teetotallers, 264-266, 270
Kipling, Rudyard, 303
Landlord and tenant, 233-251
Land transfer system, assists fraud, 183
Leniency to well to do in criminal courts, example of, 205, 206
Licensing, class regulation of, 253;
section 4 of Act of 1904, 256;
effect of reducing number of licences, 261;
extension of hours for rich, 263;
prohibition of amusements, 267
Living wage, 108, 109, 110
_Lysons_ v. _Andrew Knowles_, 175
McMahon, M.P., on imprisonment for debt, 55
Malicious injury to property, 217, 218
Manitoba, homestead laws of, 294, 295
Marcus Aurelius, 299, 306
Married Women's Property Act, undesirable use of, 161-170
Matthew, and imprisonment for debt, 24, 25
Maule, Mr. Justice, on divorce, 129
Maxwell, Rev. Dr., 13, 14
Mayence, public beer drinking at, 262
Medical officer of health, status of, 248
Menander, on marriage, 163
Mesne process, arrest on, 45;
abolished, 49
Mesnil, M. Henri, on divorce, 143
Moryson, Fynes, 8, 11, 34, 35
Newman, Cardinal, 307
Ordeal of battle, 308, 309
Overbury, Sir Thomas, 11
Overcrowding, 245;
census statistics of, 246
Parry, Serjeant, 99
_Peine forte et dure_, 12
Pepys, Samuel, 4
Pickersgill, M.P., on prisoner giving evidence, 196
Pickwick, and imprisonment for debt, 45, 47
Piers Plowman, on debt, 75;
on law and poor, 172, 173;
on lawyers, 188
Police courts, abolition of fines, 297
Poor law, 271-284;
Royal Commission, report of, 272;
in time of Elizabeth, 276;
in eighteenth century, 276;
in 1834, 277;
general mixed workhouses, 278-284
Poor man's lawyer, necessity of, 184-187
Poor Prisoners Defence Act, 194-197
_Priestley_ v. _Fowler_, 76-79
Procedure and the poor, 172-188
Public houses, 252-270. _And see_ Licensing.
Railway Conciliation Boards, and their working, 111, 112
Raleigh, Sir Walter, 1, 3
_Regina_ v. _Thomas Hall_, 129
Registrars of County Courts and private practice, 72, 73
"Reformatio Legum Ecclesasticarum, The," 125
Ridley, Sir Matthew White, on workmen's compensation, 87
Rivers Pollution Acts, 248
Roe, Gilbert, author of "Our Judicial Oligarchy," 86, 94
Rogues and Vagabonds, 4-7
Ruskin, John, 108
Sabbatarianism, evils of, 215
Salford quarter sessions in 1824, 17
Salisbury, Earl of, 244, 245
Schuster, Dr., on German system of debt collecting, 71
Scold, common, trial and punishment of, 235
Scots divorce, 126
Scott, Sir William, 15
_Seisachtheia, The_, 29
Selden, John, on marriage contract, 150
Shop lifting by ladies, 204
Sims, George R., his "How the Poor Live," 242, 243
_Sittlichkeit_, 66
Slums, legislation against, 236
Smith, Judge Lumley, on divorce costs, 148, 149
Smith, Rev. Sidney, on prisoners' right to counsel, 190, 191;
on prisoners' inability to give evidence, 192
Smith, Sir A. L., Master of the Rolls, on workmen's compensation, 89
Smollett, 9, 42
Snowden, Philip, M.P., and the living wage, 109;
on strikes, 111
Socrates, on thirst, 255
Solicitors, speculative, 175
Solon, and imprisonment for debt, 27-31
Starkie, Sir Thomas, 17
Stephen, Mr. Justice, decision in telephone case, 82
Stipendiary magistrates, want of in country, 223;
necessary in interests of justice, 231
Sumner, Lord, 180, 181
Swift, on lawyers, 181, 182
Taylor, Jeremy, his prayer for debtors, 75
Teetotallers, persecution of licence holders by, 259;
their ideals, 260;
Charles Kingsley's views of, 264-266, 270
Telephone, legal position of, 82, 83
Tennant, Mrs., report on divorce, 136
Thackeray, on prisoner giving evidence, 193
Torrens Act, 1868, 241
Treasury fees on Administration Orders, exorbitancy of, 121-124, 298
Twelve Tables, The, 32
Tyburn, 7, 15, 16
Vinogradoff, Professor, 84
Warrington, Harry, imprisonment for debt, 45, 46
Webb, Mrs. Sidney, her report on poor law, 280
Weston, Richard, trial of, 11, 12
Whipping, punishment of, 6-9, 209-212
Witchcraft, 100
Workhouses, 271-284. _And see_ Poor Law.
Workmen's compensation, 76-105;
history of the law, of, 76-84;
employers liability, 86;
in Court of Appeal, 90-93;
in America, 94, 103;
162, 286;
and conciliation, 298
Wyrley, cattle maiming at, 219
York, Archbishop of, on divorce, 136, 137
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Transcriber's Notes:
Passages in italics are indicated by _italics_.
The following misprints have been corrected:
" ast" interpreted as "past" (page 18)
"suceed" corrected to "succeed" (page 111)
"gods" corrected to "goods" (page 138)
"absolutley" corrected to "absolutely" (page 184)
"Paliament" corrected to "Parliament" (page 248)
Other than the corrections listed above, inconsistencies in spelling and
hyphenation have been retained from the original.
*** End of this LibraryBlog Digital Book "The Law and the Poor" ***
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