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 titleSittlichkeit, 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 managedto 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 soentirely 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 ofanother 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 theTreasury 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 andno 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 ofthrift 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 plaintsautomatically 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 toimprison 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 whosenexusis 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.
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 SummerAssizes 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 andjustice, 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, butthe 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 thatnatural justiceis 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 RichardCœur 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 makingex post factolaw.” 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 givingdecisions 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 thestreet 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 inThe 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 openlyignored. 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 onrecognition.” 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 themost 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 theirmoney 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 morethan 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 forMr. 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 theSporting 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 schemethat 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 thetheory 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. TheLaw Journalof June 13th, 1914, states that there are seventy-threeworkmen 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 meanxin the Court of Appeal andyin the House of Lords,xrepresenting “against the workman” andy“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 mynoble 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 thetroubles 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 thegrievances 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 lawsand 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. InEngland 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.” Wesee 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 fraudand 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 benchwho 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 ofhis 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 towhether 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 decisionsto 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.
BANKRUPTCY