The Law and the Poor

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.

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

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.

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

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

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

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:—

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

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 Cœur 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.