FLAT-TRAPS AND THEIR VICTIMS
If we could remember half the wise saws and moral jingles that nurse and granny taught us in the nursery and not forget to act upon them in after life, what sensible citizens we should be! Some day there will be cinematograph lectures to the young people just leaving the elementary schools, exhibiting not only the real spider, but his many human prototypes, who are lying in wait for the working-class man and woman at every corner of their career. A nature lesson an the smaller tally-man would be far more practical in a city school than a botany lecture on the lesser celandine. Nevertheless, I doubt if it will do much good when it comes about. Human beings are naturally divided into spiders and flies, and of thetwo the latter really have the best of it. There is not much fun to be had out of a cramped life in a dingy web counting your gains, even if a white waistcoat and a gold chain conceal your evil conscience. At least the fly buzzes round a bit and thinks he is seeing life before he biffs into the web. And no one need care much about the gay young sportsman bachelor variety—except perhaps his sweetheart, and she has a lucky escape, poor thing! But the silly old married fly who gets caught in the web and leaves a young wife and family starving at home, or, worse still, the house-mother fly who rushes into the web just to look at the spider’s latest fashions which she knows her old bluebottle cannot afford—these are sad cases.
Thomas Carlyle was mightily pleased with himself, I doubt not, when he hit upon that phrase describing his fellow citizens as “The twenty-seven millions, mostly fools.” Those last two words are constantly in the mouth of the odd fool in reference to the 26,999,999 other fellows. Still a long life in the County Court compels me to the conclusion that the fool is not extinct; he is, indeed, but too prevalent. Furthermore, the old world saying, “that a fool and his money are soon parted,” is, like many another old proverb, a true saying.
These being the facts, why does the law side with the inappropriate knave who preys upon the harmless necessary fool?
Scientific sociologists will no doubt tell me that if the law were to protect the fool the effect would be to increase and multiply the breed of fools, wherebythe human race would become a bigger fool race than already it is. To which my reply would be that the law as it now stands makes the trade of knavery such a lucrative one that the business of it is fast becoming overcrowded, and the best hope of the extinction of the knave seems to lie in the fact that he will soon have to work nearly as hard for his living as the honest man.
It is all very well to smile at the simplicity of the fool, and admire the cunning of the knave, but let us remember that the poor fool has in each generation to discover for himself that this is a world in which skimmed milk is constantly masquerading as cream, and that faith in the honesty of human nature in business affairs is in the poor man the first step on the road to ruin.
I do not want the law to mollycoddle the fool and deprive him of the birthright of an Englishman to make a fool of himself in his own way, but I should like to see the law doing more to stamp out the knave, especially—O, yes, especially—when he is a respectable, pious, well-to-do knave clothed in broad cloth and a well-boiled shirt, tempting the working man to part with his savings in the name of thrift and the preparation for the rainy day.
What misery has been caused by well-advertised and wicked schemes of investment introduced to the working man by lying promises garnished with much prayer and psalm singing!
If a chartered accountant could make out a balance sheet of the losses of the working classfrom frauds connected with building societies, insurance schemes, house-purchase companies, and the like, from the days of the Liberator onwards, what a terrible indictment it would be of the way in which the law permits the rich knave to rob the poor fool! And yet how few of the promoters of these schemes arrive at their proper destination—the gaol.
We open our prison doors readily enough to the poor debtor, but the rich man who lives on the stolen savings of the poor finds it as difficult to enter the gates of the gaol in this world as he will to reach the wicket gate in the hereafter.
Many societies have been formed under the Limited Liability Companies Acts offering working men facilities for buying their own houses or obtaining old age pensions or future lodgings in some glorious castle of Spain. These have gathered in for years the savings of working men, and when the directors were called upon to redeem their promises it was found that the money had been spent in directors’ salaries and commissions, and there was no provision whatever for the policy-holders.
For as the law stands you may make nearly any wild promises you like, for that is not the contract. The contract is the long-worded, obscure policy which is sent to the workman later on. The gaudy booklet with its golden promises and pretty pictures of villas with bow windows which the poor man treasures up has nothing to do with the case.
Sentimental judges may try to find a way out; juries may give verdicts returning the poor manhis money; but all to no purpose. The law stands firm for the solemn contract under the seal of the company, the policy which the poor man has never read and could not understand if he did; and the sleek directors chuckle at the angry working man, and with the blessing of the Court of Appeal remind him in Shylock’s own words:
Till thou canst rail the seal from off my bond,Thou but offend’st thy lungs to speak so loud.
And certainly as the law stands it is necessary to have a Court of Appeal stern and unbending in judgment to uphold the sacred nature of the contract. The doubt in my somewhat sentimental mind is whether transactions of this character between knaves and fools are in any practical business sense really contracts at all; and if they are to be deemed to be contracts whether power should not be given to Courts of Justice to release the victims from the flat-traps in which they have been snared, and give them at least some of their fur back again.
This has been attempted with the moneylender, but not at present with very great success. For myself I have always thought that the moneylender, if he be a real moneylender and not merely a fee-snatcher, is by no means the worst setter of flat-traps. I have an uneasy feeling that if moneylenders were Nonconformists or Churchmen, instead of being Jews, we should love them better.
For if you get an actual sovereign from a moneylender you have at all events got some concrete thing that you can exchange for food and drinkor clothing, and the token has an ascertained value; moreover, if you know a little arithmetic you know what you are paying for it. But if you buy clothing from a tally-man or a watch from a travelling jeweller, or a walnut suite from an instalment furniture dealer, or a family Bible in parts from an area tout, you can have no idea whatever of the value of the thing purchased or the percentage of profit on the deal.
And, though I should like to see all this class of trading done away with, and know that it causes great ruin and misery, yet to my mind the moneylender and even the lower class of tally-men are angels of light compared with the directors of insolvent collecting societies, who take the savings of the thrifty poor on promises that any sensible person must know to be incapable of performance.
As I have shown elsewhere, the bulk of the smaller flat-trap poachers could be quietly exterminated by the abolition of imprisonment for debt. That alone is the artificial manure which enables these social weeds to flourish. Withhold it from them and they would wither and die, and the world would be well rid of them.
If the man in the street could listen, as I have had to do for the last twenty years, to tales of misery and wretchedness brought about by our absurd credit system he would understand something of my impatience at its continuance. I remember a small household that was ruined by a gramophone. A poor woman, a widow, earned twelve shillings a week, and a son was doing well at fifteen shillingsa week. There were two little children. As things go in their world they were well-to-do. The Devil, in the form of a tout, came down the street one Saturday afternoon, with a beautiful gramophone. It was only a shilling a week, and all that was to be done was for mother and son “to sign just there at the bottom of the paper, and, of course, if they did not want to keep it they could send it back.”
However, later on, they found that they had signed to buy it; the boy fell out of work, the case was put in Court, and judgment was entered against both mother and son in default of appearance for two or three pounds. Then the son enlisted and went to India, and I first heard of the case when they brought the widow up on a judgment summons. I asked her why she had signed the guarantee, and her reply was: “Tom was such a good lad and he was in work, and he was that keen to have it I couldn’t deny him.” Anyone who has ever been any kind of a father or mother will not cast a stone at her for her folly.
That is one of the short and simple tales from the annals of imprisonment for debt.
What match are confiding folk like these for the lying scallywags who tout their inferior wares round the streets? And instead of our law remembering that we pray daily to be delivered from temptation, and playing the part of a father of the fatherless and a friend of the widows, it keeps alive section 5 of the Debtors Act, 1869, in the interests of about as low a class of knaves as ever disgraced the name of English trade.
I know very well that there are many good honest folk who approve of imprisonment for debt and have fears about its abolition. These should remember that in France and Germany and a great part of America there is no such thing, and yet trade does not suffer and the working classes do not starve. I should quite agree that if a man defrauds a tradesman by lying promises or cheating he should be punished, but imprisonment should be for fraud, not, as it is now, for poverty. As I have already pointed out, in America no honest man is likely to get into prison merely for the wickedness of owing money. We cannot say that is true here. In Germany the working man lives on a cash basis. Credit is not largely given, as there is no power of imprisonment for debt.
England is the last civilised country whose law encourages the poor to live on credit, yet nothing is more true than this, that once start living on credit and you cannot get out of it. It is a downward path leading to the Slough of Despond. But until the law is amended we must be content to look on and see the poor in the cages of prison whilst those that set the traps and catch them wax fat and shine.
And as soon as a boy or a girl begins to earn wages the Evil One, in the shape of some kind of tally-man, is at his or her elbow with a watch, or a ring, or a family Bible, or a musical instrument, or a shoddy sewing machine, the possession of which can be gloriously enjoyed on payment of the first instalment. I do not say that boys and girls mustnot buy their experience of the world and pay for it, but the law need not assist the knave in making it more expensive than is necessary. I have known several cases of young servants leaving good places and running off in terror because they have been served with a blue paper, “frightener” with a lot of law jargon about imprisonment upon it, threatening them with dire penalties because an instalment was due on a gold ring. More might certainly be done to prevent back-door trading, and there is no more reason why area touts should be allowed to infest the streets than the lower class of bookmakers. Well-to-do people have very little idea of the number of firms that employ travelling canvassers and touts to hawk their wares from door to door in the mean streets.
I remember once a fairly well-to-do working man—he was the doorkeeper of a public institution in Manchester—had an action brought against him by a street tout because his dog, an Airedale terrier, had bitten the prowling fellow as he was coming in at the back door. The man was badly mauled, and the dog having been proved to have bitten several other people of a like nature, I had, much to my discontent, to give judgment for the plaintiff.
About a year afterwards—having forgotten all about the matter—I was visiting the institution where the defendant was employed, when, as the gentleman I wished to see was engaged, the doorkeeper asked me to step into his lodge and sit down and wait.
“I’ve often wanted to see you, Mr. Porry,” he began, “about that there dorg case.”
“What case was that?” I asked.
“That case where you fined me five pounds over an Airedale what tried to gobble up a tally-man.”
“I remember,” I said doubtfully.
“Well,” he continued, “you seemed to sympathise with me like, but you found against me. You see I had bought that dorg for the very purpose of keeping those fellows off the premises whilst I’m away. So I said if the law don’t let ’im bite ’em, what’s the use of the dorg? and what I wanted to arsk you was, may my dorg bite ’em within reason or did I ’ave to pay five pounds ’cause ’e mauled ’im too much?”
I explained the law in relation to dogs and tally-men as well as I could, and my friend was good enough to say when I had finished:
“Well, I quite see you ’ad to make me pay as the law stands, but it don’t seem to me just. If you can’t ’ave a dorg, how can you keep them fellows out of the house?”
That was more than I could answer. We parted friends—and there was, I think, a mutual feeling between us that the law of dogs in relation to tally-men was not all it should be.
And many laws that are made for the best purposes are wrested from their beneficent uses by the wicked ones of the world and turned to the basest advantages. No legislation was hailed with greater delight by social reformers than the Married Women’s Property Act, and yet one must admit that thefraudulent use of its provisions is a commonplace. I am not suggesting that it is mainly against the poor that it is misused, though I have known of cases under the Workmen’s Compensation Act where goods were alleged to be “in the wife’s name” after an award had been made against the husband, and many a poor tradesman and small worker is swindled by this allegation, the victim not having the money to test it in a court of law, and the result being in any case so gloriously uncertain. I am sorry to put matrimony among the flat-traps, but the use of the married status among the dishonest to prevent a successful litigant from obtaining the results of a judgment brings it within this category. Even the poorer classes themselves are beginning to make use of it as a kind of homestead law to protect their goods from execution.
Much as I am in favour of seeing the poor man’s home protected to a larger degree than it is at present I do not care to see it achieved at the expense of the character of the occupants. Any law that is a constant temptation to dishonesty is an evil, and there is no doubt that when the day comes for legal reform on a large scale, the various questions relating to the position of the married woman in the eye of the law will have to be considered. In many cases, of course, the reforms will be towards the enlargement of women’s liberty, but in the matter of holding property it is clear that where a wife or a husband is tacitly allowing credit to be obtained on his or her appearance of property that property should be available to discharge the debtnotwithstanding that it is claimed as the special property of one or the other.
Menander, the Greek poet, in one of his comedies makes someone say, “To marry a wife, if we regard the truth, is an evil, but it is a necessary evil.” If this was true in 300B.C.it became more convincingly the truth in 1882A.D., when the Married Women’s Property Act became law, and the “peculiar gift of heaven” was welcomed by the unscrupulous trader as a statutory stay of execution. Since that day the Micawbers of this world have put all their available assets “in the wife’s name.”
The legal privileges of the married woman are not sufficiently well known. Like “the infant” she is, indeed, the darling of the law. What a fine commercial spree an “infant” could have who looked older than his years and had an elementary knowledge of the law of “infants”! Luckily they do not teach anything useful at educational establishments, and the “infant” never learns about his glorious legal status until it is too late to exploit it.
But a married woman can, and does, have a real good time at the expense of her own particular tyrant, man. Recently at Quarter Sessions a man was accused of stealing the spoons, and his wife was accused of receiving the property knowing it to have been stolen. But it was pointed out that it was one of the rights of a married woman to receive whatever her husband happened to bring home, and the judge directed an acquittal.
There are several pretty little distinctions in the criminal law in favour of the married lady, butperhaps it is not seemly to advertise them overmuch. When we come to so-called civil matters, the lady who does not know and exercise her legal privileges is indeed arara avis. How many of the debt-collecting cases in the County Court are concerned with the good lady who runs into debt with the tally-man or other tradesman to the husband unknown? True, in many of these the husband has a possible defence, but the good man is generally a sporting, careless fellow, and pays his five shillings a month in the belief that debt is a natural sequence of matrimony.
But when it comes to committing wrongs—or torts, to use the Norman slang of the law—the married woman is the only legal personality that is privileged to forget her duty to her neighbour at someone else’s expense. Her unhappy husband is always liable for the damages and costs, although he may have done his best to hinder the wrong that has been done. If in his absence on the daily round the good lady slanders her neighbour’s wife, or trespasses on her neighbour’s garden to commit the further wrong of slapping her neighbour’s infant, the husband, for the purposes of paying damages, is regarded by the law as being a joint offender. The law supposes that a wife acts under her husband’s directions. When they told Mr. Bumble that, he replied in the immortal phrase, “If the law supposes that, the law is a ass—a idiot. If that’s the eye of the law, the law’s a bachelor; and the worst I wish the law is, that his eye may be opened by experience—by experience.”
It does seem a bit hard on the poor man certainly. If he keeps a dog the animal may have his first bite at his neighbour free of expense, and when he gets to hear about it he can send the dog away. But with a wife there is no question ofscienter. You may not suspect that your good lady is given to slander, assault and such like indiscretions, but, if it so happens, you have to pay. Nor do I see what steps you can take to hinder the lady from trespasses which she has the mind to commit. For if you were to place her under lock and key I believe a sentimental High Court judge would grant her ahabeas corpusthat she might go out again into the wide, wide world and exercise her undoubted right of committing wrong at her husband’s expense.
And I set down these disadvantages of husbandry as some sort of excuse for the meanness and dishonesty of the man who uses “his wife’s name” to protect his assets and injure his creditors. I have in my mind a commercial married man auditing in his debit and credit mind the matrimonial balance sheet. “See,” he says, “my liabilities under the law of husband and wife. Surely there must be some assets of the relationship in which I am entitled to participate!” Then he studies the Married Women’s Property Act, and chuckles. Whether this is so or not, there is no doubt that, since the Act of 1882, “Everybody’s doing it,” and when the bailiffs come in the furniture and the stock-in-trade are always found to be “in the wife’s name.” It is a form of conspiracy, you would say, and the police should put a stop to it, but “Old Father Antic theLaw” has his answer for you there—a wife cannot be guilty of conspiracy with her husband, for husband and wife are one.
There was a story illustrating the prevalence of this custom in the precincts of Strangeways, Manchester. Mr. Isaacs, who had been absent from business for some time, returned to his workshop looking pale and white and very weak. A sympathetic neighbour put his head in at the door, and, full of pity, said:
“Dear me, dear me, you look very ill, mine friend. Vot is the matter with you?”
“Ach,” groaned Isaacs, “I have had a terrible time, a shocking bad time.”
“Vot vas it all about?”
“I vill tell you,” replied Isaacs. “The veek before last two doctors came to mine house and took avay mine appendix.”
“Bah!” muttered his friend contemptuously. “I vonder at you. That vos all you own fault: you should have put it in the vife’s name. Then they could not touch it.”
The story might be told in a Scot’s accent, or even a Welsh one for that matter, and it would represent with equal truth the prevalent outlook of mankind on the commercial advantages of matrimony. I by no means desire to suggest that “the wife’s name” is made a baser use of by the eastern communities of Strangeways and Whitechapel than among the fair-haired Saxons of Surbiton and Chorlton-cum-Hardy.
There are many people who see no wrong indoing what is within the law, and there has always been a human tendency to score off one’s brother man by a smart trick since the days of Jacob and Esau. The fool will always be outwitted by the discreet ones of the world, who justify their ways by reminding us that we are only bound to obey the letter of the law, and that there is no duty cast upon us to interpret and respect its spirit.
And simple charitable folk will say that after all things may really be quite honest and straightforward, and it is only the stingy creditor who sees fraud and the ungenerous judicial mind that finds in the constant repetitions of a series of happenings an intention in the parties to whom the events occur to wrong their neighbours.
For why should not John Smith put over the door of his shop “J. Smith,” and how can the pleasant, careless fellow pay his debts in these bad times, and why do those wholesale curmudgeons press for their money and weary of John’s winning smile and dangling tales of future payment? If creditors won’t wait it is really very foolish in these days to sue for the money and put the bailiffs in. For friend John is away at the races and when they come and seize the stock and effects of “J. Smith” there is Mrs. Smith, dear, good lady, to whom of course everyone knows, or ought to know, the business belongs.
Is not she a married woman? Cannot she trade in her own name? Is not her name over the door—well, not her name exactly, but her initial—her full name is Jane Smith—and as for her husband,he has never been anything but a servant of hers, and now she is going to run the business herself!
In due course of evolution, no doubt, we shall breed this dishonesty out of the race, or else the kind of poor, simple tradesman who gives credit without inquiry will become extinct.
At present there are quite a number of people who regard laws not so much as guides to good conduct, but as difficulties to be overcome in the obstacle race of life. A learned king’s counsel, a well-known expert in bankruptcy and bills of sale, told me of an interview he had with a secretary of a social society who came to ask him to deliver a lecture. The secretary explained that their members were mostly cabinet makers and small furniture dealers, and they had a meeting and a discussion every month. The king’s counsel agreed to come, and asked what sort of subject they would like him to speak about.
“Well,” said the secretary, “our president, Mr. X——, you may know him——”
The king’s counsel shook his head.
“Well, he has been bankrupt twice—I thought you might have met him. He proposed a very good subject, and the committee were quite pleased with it.”
“And what did he suggest?”
“Well, seeing we are nearly all interested in the furniture trade, he thought there would be a good turn up if you would come and lecture on the Bills of Sale Acts and how to avoid them.”
And I suppose a brainy man, with a good wife,and, what is almost as rare nowadays, a good bill of sale, can live on nothing for about as long as it can be done.
That candid poet, Arthur Hugh Clough, pointed out many years ago that the ancient decalogue did not cover all our sinful modern ways, and amended the eighth to run thus:
Thou shalt not steal; an empty featWhen it’s so lucrative to cheat.
And surely we may ask, Why should this miserable cheat flourish among decent citizens of to-day? Should not a man or woman be made to trade in his or her own name? In a business community it is almost impossible to make adequate inquiries before you start trading, and why, if you come to think of it, should an individual desire to trade in any but his own name? The frauds that are committed may not be very serious, but all forms of cheating and sharp dealing are detrimental to trade, and trade, after all, is the basis of our national pre-eminence. It seems particularly undesirable in a nation that prides itself on its domestic purity that “the wife’s name” should be a symbol of dishonesty. If we cannot attain to a decent code of commercial morality without it we shall have to ask our four-hundred-pound legislators for yet another statute. “One man, one name, and make him trade in it,” would be well received by all the honest, rich and poor, throughout the country.
I have dealt at some length with this question of putting goods in the wife’s name because I doubt if folk whose business does not take them into theCounty Court have any idea how prevalent it is and what a very present help it is to the man who is living upon his neighbours by some semi-fraudulent business. Every now and then the setter of flat-traps catches a victim too strong and lusty to remain in the trap. The shoddy gold watch is returned, the bogus business is thrown back on the exploiter’s hands, the company promoter who has annexed the savings of the victim by false promises is sued for damages for deceit. In some of these cases by pertinacity and the spending of more money a triumphant judgment will be obtained by the fly against the spider. But there it ends. When the high bailiff visits the web he is politely informed that it is part of the wife’s separate estate, every thread in the web is covered by a bill of sale, and if you try to imprison the old spider for debt you would find the greatest difficulty in proving his means to the satisfaction of the Court. Bankruptcy has no terrors for the old fellow. You will probably find that he has been there before and rather likes its old-world dusty crannies and the peaceable formulæ of its schedules and accounts.
No doubt it is very difficult to draft laws that the wicked cannot wrest from their righteous purpose and use for iniquity. But the law plays into the hands of the knave by its verbosity and diffuseness and the great mass and complexity of it, which the knave studies with as great care and astuteness as the lawyers and judges whose duty it is, within the four corners of the law, to prevent his wrongdoing. When it is enacted “Thou shalt not steal,” theCourt knows where it stands, but that is a far more easy statute to construe than anything the parliamentary draftsman turns out to-day. If we could get a short statute of one clause, “Thou shalt not cheat,” with an appropriate schedule containing a tariff of fines and imprisonment, I think magistrates could do a good deal to cleanse the cities of a great many low ruffians who make their living by swindling the poor and make the law as it stands their attorney to collect the spoils.
POVERTY AND PROCEDURE
We have moved along a little since the days of Edward III., and if Piers Plowman were with us to-day he would see no visions of “money paid in presents” to State servants, at all events not to the judiciary. Bacon was the last Lord Chancellor who indulged this evil habit, and if, as his admirers tell us, he was at the time producing his own plays on sharing terms with impecunious actors, one can understand the necessity of it whilst condemning the practice. Although we have made justice pure enough in this country and not directly purchasable, yet the rest of Piers Plowman’s indictment is true enough of the present time, and law is still a maze wherein the rich are guided by the clever ones whoknow the way and the poor too often get lost for want of an honest guide.
There are many signs that the public conscience is being slowly awakened to the iniquity of one side in a law suit having all the legal aid that money can buy and the other side nothing. In criminal cases something is already done and a beginning is being made on the civil side in the High Court to give the poor legal aid. These reforms do not amount to very much as yet, but they are the first steps towards remedying Piers Plowman’s grievances and, considering that it is less than six hundred years since that excellent visionary made his moan over the law and the poor, and the drawback poverty has in the procedure of the Courts, there seems to have been no very unusual delay in Government taking the matter up. We may at least congratulate ourselves that we have got a scheme of some sort which can be amended and put into a business shape instead of the Select Commission which reformers are generally offered to keep them quiet. Old Piers would be awfully happy—“bucked,” I think, is the modern word—if he could know that after five hundred and fifty years we were tackling the problems of life that worried him so greatly. In another six hundred years or so a lot of the little matters referred to in this book will get smoothed out. If you can get into the habit of thinking of the world’s progress in centuries instead of months you will find it very comforting.
Until more is known of these new schemes and their workings we must write of the present systemas we know it, for any change in it will certainly be slow enough and it is something to understand the circumstances of the present in order to see what changes are really required.
You may remember that George Eliot in “The Mill on the Floss” describes Mr. Tulliver as saying, “that in law the ends of justice could only be achieved by employing a stronger knave to frustrate a weaker. Law was a sort of cock-fight in which it was the business of injured honesty to get a game bird with the best pluck and the strongest spurs.”
I do not say for a moment that Mr. Tulliver was right, but I think George Eliot shrewdly described in his words the attitude of mind of the man in the street towards the High Court of Justice. Cock-fighting was always a popular, cruel, and exciting sport, and now that it is done away with the next best thing is to squeeze into the Divorce Court and witness a real set-to between Chanticleer, K.C., and young Cockerel, who, they say, will be taking silk himself very soon and will knock the older bird out of the ring.
Certain it is that the poor have a notion, in which there is doubtless some truth, that the fact that the other side had a better and more expensive counsellor gave them a greater chance in the legal lottery. The side that can put Carson on to bowl at one end and F. E. Smith at the other must start at a better price than the side which has to rely on an unknown amateur in the back row. Of course, A. N. Other may take some wickets, but the public have a very business-like belief that money talks, and that theverdict of the jury, like most of the verdicts in life, will turn out to be on the side which can put in the field the most expensive team.
Certainly I can say without hesitation that working men would never have got their due from the Workmen’s Compensation Acts if each particular poor workman had had to fight for his rights at his own expense. It is to the trade unions and their co-operative litigation that the thanks of the workmen are due for preserving their rights under the Act.
Mr. Lysons was a Pendleton collier, and had only worked for a few days when he received an injury. This happened in 1901, and at that time the old Act said that no compensation could be recovered until a man had been off work for two weeks. It was argued before me that this being so, unless a man was employed for more than fourteen days he could not come within the Act at all. The argument did not appeal to me, but it did to the Court of Appeal, and later on again it did not to the House of Lords. So the man got his money.
But the point of the case is that had not the union come forward to take his case to the House of Lords, Lysons would have lost his compensation, and the Act of Parliament would have been construed to limit the rights of the poor for all time.
This particular case cost the union six hundred pounds to fight, and the point in dispute was whether the injured man was, or was not, to receive six shillings a week for five weeks. Several cases have run the same course. The Act is obscurely draftedand capable of many interpretations. Some of these that still stand on the books remain precedents only because the workman has not money enough to carry the case higher and has no union behind him.
And, though in the first instance a workman might often make shift to state his case in the County Court himself and rely on his own advocacy as to the facts and the judge’s knowledge of the law, it is absurd to suppose he could argue a legal point in the Court of Appeal or House of Lords without assistance. Unless a trade union is ready to take up the case, the only hope of a man getting his rights is through the aid of a speculative solicitor.
Such a system has its drawbacks to the litigant and the profession, and leads to unpleasant and undesirable incidents, but it is no use shutting one’s eyes to what is going on every day in every Court. Dodson and Fogg have always been looked down upon ever since Sam Weller gave them away by blurting out in Court that it was “a wery gen’rous thing of them to have taken up the case on spec. and to charge nothing at all for costs unless they got them out of Mr. Pickwick.”
No doubt it is very unprofessional to make such an agreement, but with the law as it is, and the poor with rights under the law, how on earth are they to get their rights unless there is a speculative solicitor ready to risk a certain amount of out-of-pockets in the hope of getting them back with advantages from Mr. Pickwick? Unless a speculative solicitor is ready to back the poor man’s case with gratuitous services and money enough for counsel’shonorarium, surveyor’s plans, doctor’s and Treasury fees, how can the case be launched at all?
Indeed, could one be certain that such a solicitor never undertook any case unless he was satisfied that his client had right on his side, should we not have to admit that the speculative solicitor was a ministering angel engaged in a practice of delivering the poor that cried, and the fatherless, and him that had none to help him?
And as day by day the poor have more laws made to guide them into the way of righteousness, and more statutes are passed with the intention of making the life of the poor healthier, brighter, and better, and as, moreover, in this imperfect world the servants of the Evil One are always prowling round to cheat the poor of their rights, it would seem to follow that if Law Courts and litigation are to be the order of the day we must each of us have a panel lawyer to whom we can go when we want an injunction and ourhabeas corpusis not up to the mark.
For years and years there have been speculative doctors. No one thought any the worse of doctors because they founded hospitals and gave their services free of charge and entered acaveatagainst disease and death without first getting something on account of costs. And why should not we have legal hospitals and out-patient departments attached to the County Court where the house physician is the young man who has taken the best degrees in law and the visiting surgeon is the great leader of the legal profession?
The idea is no more ludicrous in one profession than it is in another. Medicine has its noble traditions of charity. Why should not lawyers set an example of self-sacrifice and unselfishness? Or is there some subtle essence in the law that of necessity destroys the favourable microbes that promote peace and goodwill among men?
We of the long robe of the Inns of Court have always held in theory that we were there to take on the protection of any and every suitor. Please do not think when your attorney asks you for counsel’s fees that you are hiring him by that golden nexus of guineas. By no means. No barrister can stoop to take wages or salary. What you are giving him is a mere gratuity, “which a barrister cannot demand without doing wrong to his reputation.” And, that being so, one might expect some of the wealthier Templars to take the ideal of their profession at its face value and set up to advise and plead for the poor not only without wronging their reputation by demanding a gratuity, but by refusing to accept one.
In a recent case much was said of the noble attitude of Barrister A., who, being a political opponent of Barrister B., appeared for him when he had got into trouble—I use the phrase in no technical sense. Correspondence ensued, and some enthusiasts for the honour of the profession said that every barrister was bound to take up a case if it was offered him. I wonder what would happen if Lazarus went knocking at the doors of Crown Office Row and Pump Court with a claim againstDives, but without a gratuity in his hand? Would he get anyone to advise him on evidence or settle the indorsement on his writ? One never knows.
The atmosphere of our Courts is not all that it should be. I do not refer to the physical fog which pervades them, the smells of which the electric fans blow about the building in the sacred name of ventilation, but the moral atmosphere of our Courts always seems to me to suggest that the law is an appanage of the rich. By all means let us have dignity, decorum, and distinctive dress, but if you go into the High Court, although you may hear the affairs of the poor dealt with sympathetically and in a just spirit, the atmosphere of the Court is well-to-do and prosperous. Everyone connected with the duties seems to belong to the upper middle class. There is no place at all for the working man to play his part except on occasion in the jury box.
And then, if the claim is the claim of a poor man against a rich man, a special jury is empanelled and you get at a greater cost a tribunal of the defendant’s own class to hold the scales of justice. And though I firmly believe that all do their best, and that speaking generally justice is well administered, yet I can quite understand the feeling of a poor man entering a Court of Justice and finding that the judge who lays down the law, the jury who decide the facts, the advocates who argue the case, and the solicitors who instruct the advocates are all drawn from a class of the community which the workingman rightly or wrongly believes to be hostile to his outlook on life.
If I have not made myself clear, imagine yourself bringing an action against a trade union, and finding when you came into court that a well-known ex-Labour M.P. was on the bench, that the jury were chosen entirely from the working classes, and that you were only allowed to be represented by a next friend chosen from the ranks of a particular trade union.
Would you, under circumstances of this kind, even if you were convinced of the honesty and sincerity of every portion of the tribunal, feel that sense of security in its right decision which is so essential in a community where law should be respected?
And that this is a real trouble and that the Courts are aware of its existence was shown in a recent judgment of Lord Sumner in the Court of Appeal. A learned judge in the Court below in correctly directing the jury as to the effect of the Trades Disputes Act had “added some remarks pointedly expressed which were indirectly a criticism of the Act and substantially a statement to the jury that a person who availed himself of the defence afforded by the Act was setting up a dishonest defence.” These remarks Lord Sumner described as “inopportune, detrimental to the defendant’s case and, perhaps worst of all, irrelevant.” He concluded with quaint sarcasm: “A judge in charging a jury could never safely indulge in irrelevant observations because he could not be sure that the jury would besufficiently logical to take no notice of them.” I intend asking the Office of Works to have that painted up on the walls of my Court. It is worthy of letters of gold. Irrelevancy is certainly the worst of sins and it is a natural vice in most of us only to be kept down by prayer and fasting from the practice of it. We all dislike some Act of Parliament; the Insurance Act, the Ground Game Act, the Finance Act—none is so perfect that it has not some judicial enemies. And it is certainly very tempting when you meet the fellow in Court to give him a bit of your mind. But it must not be. The Legislature is our schoolmaster. Outside in the playground and on vacation we can express our opinions about him freely, but in school—No!
Lord Sumner is perfectly right and when he next speaks on this subject I wish he would point out with authority that this human habit of irrelevancy is the constitutional reason for maintaining the grand jury. For centuries the King’s Bench judges have worked off their natural irrelevancy in charging the grand juries at assize towns to the great benefit of themselves and the local papers. This national safeguard, this barrier between judicial irrelevancy and the public at large, should not be removed in a careless spirit. Our forefathers knew a thing or two. The grand jury is really a sound instrument of constitutional mechanics. It is the safety valve for the blowing off of judicial steam.
Lawyers and judges are certainly held in higher esteem to-day than they were in the past. Gulliver describing the contemporary lawyers to his friendand master, the Houyhnhnm says: “there was a society of men among us, bred up from their youth in the act of proving, by words multiplied for the purpose, that white is black, and black is white, according as they are paid. To this society all the rest of the people are slaves. For example, if my neighbour has a mind to my cow, he has a lawyer to prove that he ought to have my cow from me. I must then hire another to defend my right, it being against all rules of law that any man should be allowed to speak for himself.” In another passage he inveighs against judges in a strain of even coarser invective. “Now your honour is to know,” he says, “that these judges are persons appointed to decide all controversies of property, as well as for the trials of criminals, and picked out from the most dexterous lawyers, who have grown old or lazy; and having been biassed all their lives against truth and equity, lie under such a fatal necessity of favouring fraud, perjury, and oppression, that I have known some of them refuse a large bribe from the side where justice lay, rather than injure the faculty, by doing anything unbecoming their nature or their office.”
Even in 1727 the extravagance and exaggerations of these passages must have diminished the force of the satire, but one must remember that under the old forms of procedure and law of evidence all sorts and conditions of chicanery were possible, and the search after truth was clogged and hampered by technicalities that made for injustice.
Crabbe, in “The Borough,” draws a picture of Swallow, the lawyer, “a hard, bad man who preyedupon the weak,” but he had sufficient insight into the reality of things to see that:
Law was design’d to keep a state of peace;To punish robbery, that wrong might cease;To be impregnable; a constant fort,To which the weak and injured might resort.
And the main reason that the law in old days failed in a great measure to carry out its mission to protect the poor was the extraordinary mystery and obscurity of it. Where law is a jargon of technicalities foreign to the business ideas of the people an immoral man who is a lawyer has an easy task before him to defraud the weak. In our own time the worst frauds committed by lawyers have been mortgage frauds where the deeds were deposited with solicitors who converted them to their own use. Our land transfer system is a relic of the past; it is a mystery that no plain citizen can comprehend. It is necessary for him to employ a lawyer to carry out the smallest transfer of land and it is necessary for him to rely on the statement that the land has been conveyed to him and that the title deeds are in order. The technical obscurity of the transaction opens the door to frauds that would be impossible with a modern, businesslike, public land transfer department.
And as technicalities in law and procedure were gradually abolished so we find the pictures of lawyers in contemporary fiction becoming less ignoble, though there will always be more romance in the story of a fraudulent lawyer leading a double life than in the career of a blameless practitioner whoserves his clients honourably during office hours and returns punctually to his accustomed suburb at the appointed dinner hour.
Though we have done away with much legal fiction and cumbrous technicality we cannot greatly boast of the simplicity of our legal procedure. Take the County Court Practice for instance. Here is a Court primarily designed to adjudicate on the simple disputes of poor people. There are two practice books. They cost over a guinea apiece, they consist of hundreds of pages and areabsolutelyincomprehensible except to the trained lawyer. This being so it is clear that the lawyer is as necessary to the poor man as he is to the rich. It is a sign of grace in the matter of procedure that whilst this chapter is in the writing we have some new rules issued about giving poor people assistance in High Court actions. Up to now the procedurein forma pauperishas not been of practical benefit to the poor except in enabling an occasional important appeal to reach the House of Lords. It is too soon to say whether these new rules will meet their object. Shortly, the scheme is that a poor person—meaning one who can satisfy the judge that he is not worth fifty pounds—will have counsel and solicitor assigned to him from a rota. After that his case will be conducted free of costs or fees. If he succeeds the solicitor—but in no case the counsel—will get costs.
Much depends of course on the spirit in which this is worked, but it only refers to the High Court—which is not, speaking generally, the poor man’s Court—and it seems unlikely on the face of it that ascheme of this kind, with no one in particular to look after it and advertise its existence, will do away with the undesirable activity of the speculative solicitor. One wishes it well, but except perhaps in relation to divorce cases it does not appear on paper to be of great practical use.
The fact is that it is not a very hopeful thing to go to lawyers and committees of lawyers for reforms unless you have the driving power of the business man behind them. Nothing was to be more disastrous according to legal prophecy than the institution of the Public Trustee. No reform has done more to mitigate domestic worries and anxiety than this beneficent institution. Lawyers and laymen nowadays concur in casting their troubles upon him and sheltering themselves and their clients beneath his protecting wing. If we are ever to have a proper system of legal advice for the poor it will, I think, have to be made an official department with a business head of affairs and attached lawyers. It might perhaps be added to the duties of Labour Exchanges, but in any case it should be a department of the Board of Trade, and it should have branches throughout the country and power to help the poor in all the Courts of the country. A device for suingin forma pauperisworking only in London, such as is set up by the new rules, cannot be of much avail in tackling the problem of placing legal advice and assistance at the call of the poor.
I wish some experiments of a voluntary nature could be made of a more extended character than the poor man’s lawyer societies that are attachedto University settlements, and do good work in advising the poor. It is really in Court that a poor man wants assistance. I often think that a poor man or woman coming into a Court for the first time is like the average middle-class Englishman when he finds himself on Calais Pier without a word of French speech at his command and entire ignorance of the ways of thedouane. How he clings to a friendly interpreter with a gold band round his hat. How extravagantly he rewards him when he and all his luggage are at length safely in the train.
And why should not we encourage an amateur legal interpreter in our County Courts just as we welcome missionaries in our police Courts. I should like to see practising in each Court an official friend of the poor, ready to state the case of a poor man or woman who sought his assistance. There is an existing section of the County Courts Act allowing a friend to appear for anyone by leave of the judge if he does not do it for fee or reward, and on that foundation something might be built.
I remember a clergyman, Father Gething, appearing for an old army pensioner against an insurance society with complicated rules, and asking to be allowed to address me, and conduct the old man’s case. Sir William Cobbett, not having in his mind for the moment the section I refer to, objected. I asked Father Gething whether he was going to recover any “fee or reward” for acting in the case.
“Certainly not,” replied the reverend gentleman.
“But perhaps,” I continued—somewhat mischievously—“Sir William is going to contend thatthe word ‘reward’ in the statute means not only reward in this world, but the next.”
Sir William smiled and shook his head at me in dignified reproof. He was not going to argue this, and with his very good will and assistance the clergyman conducted the case, and in the end secured a victory.
In the Army Courts-Martial a prisoner is always allowed a friend to advise him and to take a limited part in the proceedings, and I cannot help thinking that long before the poor man has his panel lawyer voluntary charity will be allowed to supply him with a “friend,” who shall be trained in the law, but ready to give his services to the poor without fee or reward.
Many will think that the suggestions that I have sketched out of assistance to poor people are chimerical and that in any case they are likely to be costly and that the grievance, such as it is, is not worth the money to be spent on the remedy. At one time I seem to be calling out for no lawyers and here I am demanding more lawyers. The inconsistency is only apparent. In all legal reforms I place in the forefront conciliation. I want to see the French “preliminary of conciliation” applied without delay to all small cases and I want the judge of the County Court to be clothed with the duty of the Frenchjuge de paix, whose business it is, in the first instance, to bring the parties together and get them to shake hands. Only when that fails, or in those cases where litigation is essential and necessary to the proper determination of a real dispute, should I ask the State to assign counseland solicitor to the poor. If a poor man has an honest suit with a rich man it should be a point of honour with the Courts to see that he is not at a disadvantage in their procedure.
But merely providing a poor man with lawyers will not alone work the miracle. Money must be found to pay his witnesses and prepare his case, and this is even more necessary in civil cases than in the defence of prisoners where, as we shall see when we come to consider criminal matters, the State, whilst providing legal aid, has stopped short of providing what may be still more necessary, financial assistance for necessary evidence, some of which may be of an expert and expensive character wholly out of reach of a poor man.
Piers Plowman naturally threw the whole blame on the lawyers who went about, as he said:
Pleading the Law,for pennies and for pounds,Unlocking their lips neverfor love of our Lord.
But I cannot for myself see why a lawyer or a doctor should work for nothing any more than a business man or an author, and, if we knew the truth, I expect we should find that old Piers himself invented his vision as much in the blessed hope of royalties as “for the love of our Lord.”
I do not want charity for the poor in our legal procedure, nor do I wish to see litigation multiplied by cheap remedies. On the contrary, I want every effort made to cut down litigation to a minimum, but when a lawsuit takes place I want it to be a fair fight and no favour, with each side equally well equipped for the fray.
CRIME AND PUNISHMENT