CHAPTERXIIITHE PEARK’Tis with our judgments as our watches; noneGo just alike, but each believes his own.Pope: “Essay on Criticism.”Shee said a witty thing to Lord Coleridge, who was puzzled with the Lancashire dialect. A witness, in describing a verbal encounter, said, “Then the defendant turned round and said if ’e didn’t ’owld ’is noise ’e d knock ’im off ’is peark.”“Peark? Mr. Shee, what is meant by peark?” asked the Lord Chief Justice.“Oh, peark, my lord, is any position where a man elevates himself above his fellows—for instance, a bench, my lord.”As a matter of fact, the witness placed an adjective before the word “peark.” But do not let us bring the blush of shame to the cheek of modesty. There is no cheek like the cheek of modesty.I am reminded of that story by remembering that it is more than eighteen years since I was elevated on to my “peark” in Quay Street, Manchester. It was rather a curious position for me to attain, and a fortnight before I was appointed I had not the least idea of applying for the post, and never dreamedthat I should get it if I did. I had been very fortunate in my practice, and had, if anything, too much to do; and I confess that working at high pressure by night as well as by day not only had no charms for me, but injured my health. The amount of travelling one did was a great strain on the nerves. I recollect in four consecutive days doing cases at Fleetwood, at Hull, at London, and then at Manchester. One wanted to be as strong as the proverbial horse to get through the work without a breakdown. About ten days before Whitsuntide, I was in a case in town in the Court of Appeal, and I happened to meet a well-known Lancashire member, who began discussing with me the resignation of Judge Heywood and the chances of the various candidates for his place. None of them seemed entirely to his liking, and he suddenly suggested that I should ask for it. So little did I know of the matter that I thought it was a condition precedent to the office that a barrister should be of ten years’ standing, and to make sure about this we went across to my friend’s chambers in the Temple and looked the matter up. It turned out to be seven years and thus made me eligible.Travelling home, the idea of regular hours of work and equally regular hours of leisure seemed to possess my mind, and I could think of nothing else. One would have to make sacrifices, no doubt, but the credit side of the imaginary balance-sheet seemed far heavier than the debit. So it was that, after some domestic debate, I wrote to the RightHonourable James Bryce, who was then Chancellor of the Duchy of Lancaster, and told him that if he wished to appoint me as judge of the County Court, I was at his disposal. The only person I mentioned it to was my old friend Byrne, because I knew he was making application himself. The Whitsuntide holidays came along, and we went to Seascale, in Cumberland, and I heard nothing about the appointment for more than a week. One Monday morning we were having breakfast at our hotel when my friend Charles Hughes, who was staying in the village, came in flourishing a morning paper, and saying, with mock reverence, “Good morning, your Honour.” When we opened our letters there was a kind note from Mr. Bryce, appointing me to the judgeship. It had reached Manchester on Saturday, but Seascale in those days had no Sunday post. That was, I believe, very nearly Mr. Bryce’s last official act as Chancellor of the Duchy. As Louis Aitken—that genial companion who disguised his wit and learning in an obtrusive Lancashire accent and a downright utterance of homely truths—declared the first time he met me in Manchester: “Another appointment of that kind would have ruined any Government.” So they took Mr. Bryce away from the Duchy and made him President of the Board of Trade.I cannot say that I altogether enjoyed the change during the first twelve months of my judgeship. In the first place, I had a serious and not unexpected breakdown in health, and, secondly, I had the greatmisfortune to lose Mr. Registrar Lister, whose long experience of the Court and its working was invaluable. I found, too, that judicial work is a very lonely business. From the moment of entering the side door in Byrom Street to the time one got out again one became an unpleasant official person. People “addressed” you instead of talking to you, and with unblushing sycophancy pretended that they believed you to possess a cyclopædic knowledge of the law. How many times have I been told that legal cases were “within your Honour’s recollection,” or “your Honour will no doubt be thinking of the case of ‘Jones.vSmith’,” when counsel were well aware that it was long odds against the Court having in mind any case whatever.There are, of course, many advantages about a “peark” like a County Court, but the main difference between it and my former work at the Bar was that one was an unfriendly, solitary job, whilst the whole spirit of the other was genial and sociable. However, I made one rule that was a great joy to me. It became a penal offence to send any paper, book, or document of, or connected with, the Court to my house. At last I was able to keep my work outside my home, and when I did get out of my cage and turn my head up Peter Street, I at least knew I was a free man until to-morrow morning. But if judicial work tends to make one morose, the good-fellowship that abounds in Manchester more than corrected the tendency. I have heard judges say that it is a mistake to live in the district in whichthey work, but I confess I do not agree. During my seventeen years in Manchester I went about in clubs and to social gatherings of every kind, and I never remember being spoken to about a case or heard a case discussed in my presence. The sense and courtesy of all classes in Manchester made life very pleasant when working hours were over.One thoughtless request I do remember, which had an amusing sequel. A friend of mine coming down in the train—we will call him Robinson—shouted across the carriage that he was summoned for to-morrow as a juryman, and as it was his mail day he wanted to be let off. I at once reprimanded him, and told him he would certainly be fined five pounds if he stayed away. The next day I called for the jury list and found “Robinson” at the bottom of the column. Taking a pencil I transferred him to the top, and when the list was called “John Robinson” came first, and I made him a most formal bow as the policeman led him into the box. As luck would have it, the case he was on lasted until 7 o’clock at night, so his mail day had to go on without him. The next morning in the train I explained to him the disadvantages of asking favours of high-souled and upright judges, and he agreed that it was not a wise thing to do. But he consoled himself, he said, in two ways: “I had a very entertaining day, and, being away from the office, I saved several hundred pounds by not buying on what turned out to be a falling market.”After the first few years we never had any jurycases, and for myself I think juries in the County Court are generally a mistake. There is too little time, and too many cases to try in the time, to deal with a jury case at proper length. I do not think I can fairly claim to be a great judge, but I do flatter myself that I am an uncommon common jury. And from a County Court point of view that is an asset. It requires some dramatic instinct to take by intuition the same view of facts that eight tradesmen would take if they had heard the same evidence. To approach a subject full of a prejudice you have not got, but which, as a jury, you ought to have, and gradually by listening to your own judicial remonstrances to lay down the cherished prejudice you never really had, and still to let a little of it appear in the final sum you award—that, I take it, is an attitude of mind not to be achieved without serious study. I think it may have been because I had more sympathy with the facts of life than with the legal aspect of affairs that Louis Aitken used to say in my praise, “that a common judge was quite as good a tribunal as a common jury.”The work of the Manchester County Court was divided into days for the poor people’s cases and days for the heavier work, which were printed in black and red on the calendars. This convenient system is at last finding its way into other places. I took a great deal of interest in the black-letter days, as they were called, for the smaller work, though trifling in amount, was often not trifling in the proportion of the amount to the weekly wage of thelitigants. If I have learned any lesson in the many days I have spent listening to the short and simple annals of the back street, it is that the law of imprisonment for debt bears very harshly on the working class. In season and out of season I have preached the injustice and inequality of the law in this matter, and we have had commissions and inquiries sufficient to reorganise the whole legal system of the State, but out of this groaning mountain not so much as a statutory mouse has yet proceeded. I should like to be still on my “peark” when the list of the day is called over without a single judgment summons in it.And I am not one of those who, because he is a magisterial or judicial person, thinks his mouth is closed as a citizen from reporting the evil things by which he is surrounded. It is true one can report them as one does to one’s pastors and masters in Royal Commissions and elsewhere, but these high ones of the earth are too engrossed in greater affairs to attend to such a small matter as the sending to gaol of some eight or more thousand of the thriftless and shiftless of their fellow-countrymen. And one has the great army of the lower middle-class shopkeepers, who think it is to their advantage to give credit where there is no credit, and they are right up against reform; and behind them stand the wholesale traders who sell to the little shopkeepers, but have the sense themselves to see that they get their money regularly on the second Tuesday of the next month. And I suppose those of us who are interested in thismatter will go on uttering ineffectively our protests in evidence before commissions and in reviews and magazines and occasional addresses to students of social science until at last a public opinion is formed strong enough to be heard in the lobbies at Westminster.I have often wondered how many tons of waste-paper filter through the waste-paper basket and solidify into one grain of public opinion. But it is better so than that some tragedy should happen, some death in gaol or some horrid act of violence which would startle the comfortable classes into a recognition of the injustice of the system. However good and necessary a reform may be, it is probably not much use having it before the large majority of citizens are really ready for it. The working classes could abolish imprisonment for debt at once, but some of their number think it enables credit to be obtained in times of labour disputes, and are listless about it; the middle classes think that any form of compulsion to make the working classes pay for the goods they sell to them is a just and righteous thing; whilst as for the upper classes, the few I have come in contact with seem to think that imprisonment for debt, don’t you know, was abolished, and that when a fellow was really “stony”—I think I have the phrase right—he went bankrupt, don’t you know, and started afresh. And that, indeed, is a true statement of the different way in which the English law treats the affairs of debtors, according to whether they be rich or poor—for the poor man has no effective bankruptcy law.And another thing that seems to me to bear very hardly on the workers, and makes it increasingly difficult for them to keep out of debt, is the heavy proportion of their income that goes in rent. If a man with £1,000 a year spent two hundred or two hundred and fifty in rent he would be regarded as extravagant. But that is what a working man has to do out of his slender income before he can find food and clothing for his wife and family. And the curious affair is that wherever you go, whether it be Manchester, Salford, Lambeth or Dartford, the problem seems to remain the same. Where, as in London, wages are rather better, rent is very much higher, as though in some weird economic way the fact that a man earns more money in London than he does in Manchester at the same trade entitles his landlord to a higher rent for even worse accommodation. And how this is going to be remedied is for those professors of social economics who have studied the question to say, but one who has discussed with many thousands of poor folk their ways and means, and the burdens of their life, may at least point out what seems to be the fact, that in increasing the wage of a man, you do not make him necessarily a citizen with a better chance in life unless you can manage to stop the automatic increase of his rent. For the landlord, like the daughter of the horse-leech, on hearing of a rise in wages, cries, “Give! Give!” and there is nothing for it but to obey.And another thing which is constantly before mymind in the work of the County Court is that, like all institutions that were intended in the first instance for the service of the poor, the County Courts have gradually interested themselves in the affairs of better-class people, and to some extent their earlier clients are being edged out. Of course, that is the history of many English institutions, and one must suppose that to some extent it is a natural evolution, and accept it as such. Pious Bishop Ridley was a suitor to Sir William Cecil “in our Master Christ’s cause” to grant him the Palace of Bridewell, “that he might therein house the naked and hungry that starved in the London streets.” This noble charity by natural evolution degenerated into one of the most degraded and brutal of prisons, as Hogarth has reminded us forever in one of his prints in “The Harlot’s Progress.” In the same way, if you read the early histories of many colleges and schools and charities, you will find that the pious founders had in their minds the advancement and interests of the poorer classes, but to-day the benefits of these institutions are almost entirely in the hands of the middle and upper classes. I daresay they make better use of them, and that it is all to the good that it should be so, but one cannot shut one’s eyes to the fact that something of this sort has been the general history of our attempts to equip the poor with social institutions for their benefit.And although I am not against the making of the County Court a valuable district court for the settlement of disputes of importance, I cannot helpthinking that something might be done to make the courts of greater value to the poor. As at present, apart from the debt-collecting about which I have said my say, the Court is mainly used by the poor to settle very small and domestic quarrels. But so swollen have the rules and orders and forms of the Court grown, so intricate are its ways, that for an uneducated man to find his correct path among its mazes without a legal guide would be impossible. No doubt the Registrar and his clerks give every assistance in their power. Certainly the poor man who wants to maintain trover for a wheelbarrow cannot be expected to spend twenty-five shillings on a “County Court Practice” and read its thousand pages in search of the answer to the riddle of procedure that the law has set him. Yet unless he employs a solicitor or casts his cares on the overburdened chief clerk to the Registrar, I suppose that is what the State expects him to do.The County Court as a tribunal for doing justice between poor disputants is an ill-equipped machine, and, without doubt, if these poorer cases were tried by the judge on strict legal lines, and if he merely listened to the plaintiff and heard such portions of his and his friends’ wandering narratives as came within the rules of evidence, the almost universal result would be to non-suit the plaintiff on the ground that he proved no case. But in practice this does not happen. The wind is tempered to the shorn lamb. The judge puts his legal telescope to his blind eye. He listens toeverything and everybody and both sides speaking at once. He takes a hand at the game himself with such worldly knowledge of the man in the street as he happens to possess, and in the end gropes his way through a mass of prejudice and hearsay and hatred, malice and all uncharitableness, and conveniently forgets that no one has complied with this section of a statute or that rule or that order, and business of a kind is done.But it would be far more satisfactory if the affairs of smaller people were not litigated, or at all events not litigated until an effort had been made to bring the parties together and get them to agree to a compromise. For think of the cost of much of this small litigation and what it may mean to a working man, and how much ill-feeling as well as hard-earned money would be saved if the parties could be brought together in some Courts of Conciliation or Reconcilement, and were not permitted to go to law until, as a condition precedent, they had been before the County Court judge and satisfied him that there was no chance of a settlement, and he marked their papers “fit” for litigation.And though many will think this a revolutionary movement, yet in truth it is nothing of the sort. For the idea is as old as the hills—and Paul thought it a disgrace, even to the Corinthians—who were no great class, as I gather—for brother to go to law with brother. What he would have written to Lancashire about the spectacle of three or four brothers and sisters wrangling in the County Court as to whoshould pay for their father’s funeral tea—the sensible old man having died penniless—I scarce like to think. Luckily Paul wrote no Epistles to the Lancastrians. For when passions are roused, family feuds are fought with a bitterness that few can understand whose duty has not forced them to witness the wretchedness of it. And the day of awakening comes with the taxation of costs and a sense that all that has been done has been to give way to an orgy of unholiness in a public place and make a great hole in savings laboriously acquired.But apart from the uncharitable nature of many law-suits let me set down the actual facts of one of the every-day cases which bring debt and ruin upon a home. A man had a dog which bit the child of a neighbour. The child was not greatly injured, but there was a small doctor’s bill to pay and a certain amount of anxiety on behalf of the parents. These people chose solicitors. After a lengthy correspondence a claim was brought for £25 by the parents of the child. Counsel were engaged. Doctors gave evidence on either side. Ultimately the case went against the plaintiff, on the ground that he could not provescienter, that is to say, that he did not satisfy the Court that the defendant knew that his dog had previously bitten someone else.Now one need not blame the lawyers. If each party believed in his own case and wanted to fight, the lawyers only did their duty according to the system under which they work. The result was disastrous. Each party was ordered to pay his own costs,which worked out at something over £15 apiece. In any case, as I remember it, the plaintiff could only have recovered a few pounds, for the damage was but small.Now Paul’s idea, and a valuable one, was summed up in the question “Is it so that there cannot be found among you one wise man who shall be able to decide between his brethren?” Only I think he overlooked the natural distrust that the average man has of a lay arbitrator. I do not think it would be reasonable to expect two members of a Welsh chapel, for instance, to leave their dispute to a deacon. The deacon knows too much of their inner life to start with, and would be bound to be suspected of partiality in his judgment. Paul’s idea of a Lay Court of Conciliation or Reconcilement was not practical politics in a work-a-day world. But when Brougham took up the idea and tried to get the House of Lords to help him put it into a business shape, one wonders that he got no assistance for so excellent a scheme. His plan was to make use of existing judges as conciliators, and the result of the combined teachings of the Saint and the Lord Chancellor seems to be that what you want is a sensible conciliator who shall also be a State official.For in the dog-bite affair recorded above—supposing that there had been a Conciliation Court to which the plaintiff could have summoned the defendant, and both parties had appeared before the judge to talk it over—a little discussion might, one would think, have brought the parties to understandthat the payment of the doctor’s bill or some such course was a fair thing to do, and that pressing vague claims of damage could result in no useful purpose. And if the parties had agreed, they could have signed an agreement in the presence of the Conciliator, which, if not carried out, could afterwards be made an order of Court. But if the judge could not bring them to agree they could still go to law, and no great harm would have been done by their meeting.And in claims under the Workmen’s Compensation Act there is good reason why some such course should be made compulsory. For when the Act was introduced, Mr. Joseph Chamberlain expected it to be an automatic scheme, and took credit for the government that “we have held it to be a first principle as well as one of our first objects to avoid litigation.” There were to be no lawyers employed and no appeals were to be allowed. What has happened in fact everyone knows. The Bill was so altered in Parliament and by succeeding legislation as to flood the County Courts with litigation of an expensive and difficult nature, and to clog the Court of Appeal with endless discussions on what are from the insurance point of view—and that is the business point of view—trifling matters. And every day one is face to face with the pitiable spectacle of a working man, not necessarily a malingerer—but a neurasthenic subject—physically fit to work, or at least to get into condition to work, and yet not capable of exercising the necessary willpower to do so, and gradually becoming more and more unfit. And the cause of the bulk of this is litigation. When a man is getting better and his mind should be turned towards work he has at his elbow a lawyer and a doctor, who, being human, have their scientific opinions biassed perhaps by the thought that only by carrying the case into Court can they hope to get any fees. The man is told it would be unwise to work both legally and physically. What is he to do? Is he to throw over his scientific advisers—why should he? Would you or I settle a case or abandon a claim against the advice of our lawyers? Nor do I blame the lawyer. He is there to advise, and often without his advice the man could not recover his rights, and certainly could not maintain his rights in the Court of Appeal and on to the House of Lords.The lawyers are a necessary part of the scheme as it exists, and so are the doctors. They hinder the man from getting well and going back to work, but that is all part of the machine. The machine is not a bad one, and no one wants to see it scrapped. We want to return to the Chamberlain ideal and wheel our machine out of the Law Courts into the yard, and work it under the power of common sense. Only in that way can we escape some dishonourable responsibility for that half-malingerer, that weak, insincere invalid, the miserable remains of what was once a good workman, which is such a common object of the County Court.I have no hesitation in saying that by a systemof conciliation 75 per cent. of the present litigation under the Workmen’s Compensation Act might be stopped, to the great benefit of the community. I would allow no Workmen’s Compensation Act case to go forward to litigation until employer and workman had come in person—or by lay deputy on the employer’s behalf—to discuss a way out. Many a workman would go back and try work again if he could go into a room and talk his affair over with a judge, and was assured that his interests would be cared for whilst he made the experiment.The scheme of workmen’s compensation was intended by Mr. Chamberlain to be a businesslike and statesmanlike scheme of accident insurance to be administered by a County Court judge, acting as an arbitrator, with the assistance of a medical referee. There were, as I have said, to be no lawyers and no appeals, which to his business mind were merely things leading to “expense, annoyance, and irritation.” The statesman desired and intended a scheme for the benefit of employer and workman based on peace and conciliation, but the lawyers have been too many for him, and to-day the Workmen’s Compensation Act litigation is little better than a wild-cat legal gamble. To diagnose whether an accident arises out of or in the course of a workman’s employment you want a legal mind combining the subtlety of a Jesuit with the discrimination of a laboratory professor. And even then you may fail if your mind is anything but an exact replica of two out of the three of those whowill ultimately sit to hear the appeal. Nor is there indeed always safety in that, for there is the House of Lords to come—and if you think the word “gamble” is too strong a word for the existing state of things, ring them up at Lloyds and ask for the current rate of odds against any Workmen’s Compensation Act appeal on its voyage from the Strand to Westminster.But it will be said, is not all this rather an attack on the writer’s own profession? I do not think so. I have tried to make it clear that I blame the system, and not the individuals who have to work it. And though I believe that any sort of Court of Reconcilement or Conciliation must in time do away with much litigation, I do not necessarily think that a bad thing for the profession. How often to-day do lawyers try and keep their clients from litigation and promote compromise to their own cost, to satisfy their high ideals of right action. I am far from thinking it desirable that we should keep alive a system of litigation that we believe harmful to the community because it brings in fees to ourselves. The spectacle in “Jarndyce v. Jarndyce,” where “eighteen of Mr. Tangle’s learned friends, each armed with a little summary of eighteen hundred sheets, bob up like eighteen hammers in a pianoforte, make eighteen bows, and drop into their eighteen places of obscurity,” may have pleased the unthinking lawyer of the day, but Dickens, with prophetic foresight, knew more about it than the Bar. It had to be swept away. And has it ruined the Chancery Bar?—ask them inLincoln’s Inn. The fact is that if we are to maintain in the face of better-educated and more thoughtful citizens the privileges and traditions of the Bar, we must satisfy ourselves and the world that the work we are doing is worthy, useful work beneficial to the community. When it fails to come up to that standard, it ought to be joyfully surrendered.Nor do I think that my suggestions would, even if they were carried out by a stroke of the pen, injure any practitioner to any serious extent. New problems are arising daily and new work is waiting to be done. But whether the results of conciliation would be to the injury of the profession or not, before anything is done the lawyers will have their say on it in the Houses of Parliament, where their number is legion, and where, as far as I can make out, the poor litigant, the client whose interests I am saying a word for to-day, is wholly unknown and unrepresented.
’Tis with our judgments as our watches; noneGo just alike, but each believes his own.Pope: “Essay on Criticism.”
’Tis with our judgments as our watches; noneGo just alike, but each believes his own.Pope: “Essay on Criticism.”
’Tis with our judgments as our watches; none
Go just alike, but each believes his own.
Pope: “Essay on Criticism.”
Shee said a witty thing to Lord Coleridge, who was puzzled with the Lancashire dialect. A witness, in describing a verbal encounter, said, “Then the defendant turned round and said if ’e didn’t ’owld ’is noise ’e d knock ’im off ’is peark.”
“Peark? Mr. Shee, what is meant by peark?” asked the Lord Chief Justice.
“Oh, peark, my lord, is any position where a man elevates himself above his fellows—for instance, a bench, my lord.”
As a matter of fact, the witness placed an adjective before the word “peark.” But do not let us bring the blush of shame to the cheek of modesty. There is no cheek like the cheek of modesty.
I am reminded of that story by remembering that it is more than eighteen years since I was elevated on to my “peark” in Quay Street, Manchester. It was rather a curious position for me to attain, and a fortnight before I was appointed I had not the least idea of applying for the post, and never dreamedthat I should get it if I did. I had been very fortunate in my practice, and had, if anything, too much to do; and I confess that working at high pressure by night as well as by day not only had no charms for me, but injured my health. The amount of travelling one did was a great strain on the nerves. I recollect in four consecutive days doing cases at Fleetwood, at Hull, at London, and then at Manchester. One wanted to be as strong as the proverbial horse to get through the work without a breakdown. About ten days before Whitsuntide, I was in a case in town in the Court of Appeal, and I happened to meet a well-known Lancashire member, who began discussing with me the resignation of Judge Heywood and the chances of the various candidates for his place. None of them seemed entirely to his liking, and he suddenly suggested that I should ask for it. So little did I know of the matter that I thought it was a condition precedent to the office that a barrister should be of ten years’ standing, and to make sure about this we went across to my friend’s chambers in the Temple and looked the matter up. It turned out to be seven years and thus made me eligible.
Travelling home, the idea of regular hours of work and equally regular hours of leisure seemed to possess my mind, and I could think of nothing else. One would have to make sacrifices, no doubt, but the credit side of the imaginary balance-sheet seemed far heavier than the debit. So it was that, after some domestic debate, I wrote to the RightHonourable James Bryce, who was then Chancellor of the Duchy of Lancaster, and told him that if he wished to appoint me as judge of the County Court, I was at his disposal. The only person I mentioned it to was my old friend Byrne, because I knew he was making application himself. The Whitsuntide holidays came along, and we went to Seascale, in Cumberland, and I heard nothing about the appointment for more than a week. One Monday morning we were having breakfast at our hotel when my friend Charles Hughes, who was staying in the village, came in flourishing a morning paper, and saying, with mock reverence, “Good morning, your Honour.” When we opened our letters there was a kind note from Mr. Bryce, appointing me to the judgeship. It had reached Manchester on Saturday, but Seascale in those days had no Sunday post. That was, I believe, very nearly Mr. Bryce’s last official act as Chancellor of the Duchy. As Louis Aitken—that genial companion who disguised his wit and learning in an obtrusive Lancashire accent and a downright utterance of homely truths—declared the first time he met me in Manchester: “Another appointment of that kind would have ruined any Government.” So they took Mr. Bryce away from the Duchy and made him President of the Board of Trade.
I cannot say that I altogether enjoyed the change during the first twelve months of my judgeship. In the first place, I had a serious and not unexpected breakdown in health, and, secondly, I had the greatmisfortune to lose Mr. Registrar Lister, whose long experience of the Court and its working was invaluable. I found, too, that judicial work is a very lonely business. From the moment of entering the side door in Byrom Street to the time one got out again one became an unpleasant official person. People “addressed” you instead of talking to you, and with unblushing sycophancy pretended that they believed you to possess a cyclopædic knowledge of the law. How many times have I been told that legal cases were “within your Honour’s recollection,” or “your Honour will no doubt be thinking of the case of ‘Jones.vSmith’,” when counsel were well aware that it was long odds against the Court having in mind any case whatever.
There are, of course, many advantages about a “peark” like a County Court, but the main difference between it and my former work at the Bar was that one was an unfriendly, solitary job, whilst the whole spirit of the other was genial and sociable. However, I made one rule that was a great joy to me. It became a penal offence to send any paper, book, or document of, or connected with, the Court to my house. At last I was able to keep my work outside my home, and when I did get out of my cage and turn my head up Peter Street, I at least knew I was a free man until to-morrow morning. But if judicial work tends to make one morose, the good-fellowship that abounds in Manchester more than corrected the tendency. I have heard judges say that it is a mistake to live in the district in whichthey work, but I confess I do not agree. During my seventeen years in Manchester I went about in clubs and to social gatherings of every kind, and I never remember being spoken to about a case or heard a case discussed in my presence. The sense and courtesy of all classes in Manchester made life very pleasant when working hours were over.
One thoughtless request I do remember, which had an amusing sequel. A friend of mine coming down in the train—we will call him Robinson—shouted across the carriage that he was summoned for to-morrow as a juryman, and as it was his mail day he wanted to be let off. I at once reprimanded him, and told him he would certainly be fined five pounds if he stayed away. The next day I called for the jury list and found “Robinson” at the bottom of the column. Taking a pencil I transferred him to the top, and when the list was called “John Robinson” came first, and I made him a most formal bow as the policeman led him into the box. As luck would have it, the case he was on lasted until 7 o’clock at night, so his mail day had to go on without him. The next morning in the train I explained to him the disadvantages of asking favours of high-souled and upright judges, and he agreed that it was not a wise thing to do. But he consoled himself, he said, in two ways: “I had a very entertaining day, and, being away from the office, I saved several hundred pounds by not buying on what turned out to be a falling market.”
After the first few years we never had any jurycases, and for myself I think juries in the County Court are generally a mistake. There is too little time, and too many cases to try in the time, to deal with a jury case at proper length. I do not think I can fairly claim to be a great judge, but I do flatter myself that I am an uncommon common jury. And from a County Court point of view that is an asset. It requires some dramatic instinct to take by intuition the same view of facts that eight tradesmen would take if they had heard the same evidence. To approach a subject full of a prejudice you have not got, but which, as a jury, you ought to have, and gradually by listening to your own judicial remonstrances to lay down the cherished prejudice you never really had, and still to let a little of it appear in the final sum you award—that, I take it, is an attitude of mind not to be achieved without serious study. I think it may have been because I had more sympathy with the facts of life than with the legal aspect of affairs that Louis Aitken used to say in my praise, “that a common judge was quite as good a tribunal as a common jury.”
The work of the Manchester County Court was divided into days for the poor people’s cases and days for the heavier work, which were printed in black and red on the calendars. This convenient system is at last finding its way into other places. I took a great deal of interest in the black-letter days, as they were called, for the smaller work, though trifling in amount, was often not trifling in the proportion of the amount to the weekly wage of thelitigants. If I have learned any lesson in the many days I have spent listening to the short and simple annals of the back street, it is that the law of imprisonment for debt bears very harshly on the working class. In season and out of season I have preached the injustice and inequality of the law in this matter, and we have had commissions and inquiries sufficient to reorganise the whole legal system of the State, but out of this groaning mountain not so much as a statutory mouse has yet proceeded. I should like to be still on my “peark” when the list of the day is called over without a single judgment summons in it.
And I am not one of those who, because he is a magisterial or judicial person, thinks his mouth is closed as a citizen from reporting the evil things by which he is surrounded. It is true one can report them as one does to one’s pastors and masters in Royal Commissions and elsewhere, but these high ones of the earth are too engrossed in greater affairs to attend to such a small matter as the sending to gaol of some eight or more thousand of the thriftless and shiftless of their fellow-countrymen. And one has the great army of the lower middle-class shopkeepers, who think it is to their advantage to give credit where there is no credit, and they are right up against reform; and behind them stand the wholesale traders who sell to the little shopkeepers, but have the sense themselves to see that they get their money regularly on the second Tuesday of the next month. And I suppose those of us who are interested in thismatter will go on uttering ineffectively our protests in evidence before commissions and in reviews and magazines and occasional addresses to students of social science until at last a public opinion is formed strong enough to be heard in the lobbies at Westminster.
I have often wondered how many tons of waste-paper filter through the waste-paper basket and solidify into one grain of public opinion. But it is better so than that some tragedy should happen, some death in gaol or some horrid act of violence which would startle the comfortable classes into a recognition of the injustice of the system. However good and necessary a reform may be, it is probably not much use having it before the large majority of citizens are really ready for it. The working classes could abolish imprisonment for debt at once, but some of their number think it enables credit to be obtained in times of labour disputes, and are listless about it; the middle classes think that any form of compulsion to make the working classes pay for the goods they sell to them is a just and righteous thing; whilst as for the upper classes, the few I have come in contact with seem to think that imprisonment for debt, don’t you know, was abolished, and that when a fellow was really “stony”—I think I have the phrase right—he went bankrupt, don’t you know, and started afresh. And that, indeed, is a true statement of the different way in which the English law treats the affairs of debtors, according to whether they be rich or poor—for the poor man has no effective bankruptcy law.
And another thing that seems to me to bear very hardly on the workers, and makes it increasingly difficult for them to keep out of debt, is the heavy proportion of their income that goes in rent. If a man with £1,000 a year spent two hundred or two hundred and fifty in rent he would be regarded as extravagant. But that is what a working man has to do out of his slender income before he can find food and clothing for his wife and family. And the curious affair is that wherever you go, whether it be Manchester, Salford, Lambeth or Dartford, the problem seems to remain the same. Where, as in London, wages are rather better, rent is very much higher, as though in some weird economic way the fact that a man earns more money in London than he does in Manchester at the same trade entitles his landlord to a higher rent for even worse accommodation. And how this is going to be remedied is for those professors of social economics who have studied the question to say, but one who has discussed with many thousands of poor folk their ways and means, and the burdens of their life, may at least point out what seems to be the fact, that in increasing the wage of a man, you do not make him necessarily a citizen with a better chance in life unless you can manage to stop the automatic increase of his rent. For the landlord, like the daughter of the horse-leech, on hearing of a rise in wages, cries, “Give! Give!” and there is nothing for it but to obey.
And another thing which is constantly before mymind in the work of the County Court is that, like all institutions that were intended in the first instance for the service of the poor, the County Courts have gradually interested themselves in the affairs of better-class people, and to some extent their earlier clients are being edged out. Of course, that is the history of many English institutions, and one must suppose that to some extent it is a natural evolution, and accept it as such. Pious Bishop Ridley was a suitor to Sir William Cecil “in our Master Christ’s cause” to grant him the Palace of Bridewell, “that he might therein house the naked and hungry that starved in the London streets.” This noble charity by natural evolution degenerated into one of the most degraded and brutal of prisons, as Hogarth has reminded us forever in one of his prints in “The Harlot’s Progress.” In the same way, if you read the early histories of many colleges and schools and charities, you will find that the pious founders had in their minds the advancement and interests of the poorer classes, but to-day the benefits of these institutions are almost entirely in the hands of the middle and upper classes. I daresay they make better use of them, and that it is all to the good that it should be so, but one cannot shut one’s eyes to the fact that something of this sort has been the general history of our attempts to equip the poor with social institutions for their benefit.
And although I am not against the making of the County Court a valuable district court for the settlement of disputes of importance, I cannot helpthinking that something might be done to make the courts of greater value to the poor. As at present, apart from the debt-collecting about which I have said my say, the Court is mainly used by the poor to settle very small and domestic quarrels. But so swollen have the rules and orders and forms of the Court grown, so intricate are its ways, that for an uneducated man to find his correct path among its mazes without a legal guide would be impossible. No doubt the Registrar and his clerks give every assistance in their power. Certainly the poor man who wants to maintain trover for a wheelbarrow cannot be expected to spend twenty-five shillings on a “County Court Practice” and read its thousand pages in search of the answer to the riddle of procedure that the law has set him. Yet unless he employs a solicitor or casts his cares on the overburdened chief clerk to the Registrar, I suppose that is what the State expects him to do.
The County Court as a tribunal for doing justice between poor disputants is an ill-equipped machine, and, without doubt, if these poorer cases were tried by the judge on strict legal lines, and if he merely listened to the plaintiff and heard such portions of his and his friends’ wandering narratives as came within the rules of evidence, the almost universal result would be to non-suit the plaintiff on the ground that he proved no case. But in practice this does not happen. The wind is tempered to the shorn lamb. The judge puts his legal telescope to his blind eye. He listens toeverything and everybody and both sides speaking at once. He takes a hand at the game himself with such worldly knowledge of the man in the street as he happens to possess, and in the end gropes his way through a mass of prejudice and hearsay and hatred, malice and all uncharitableness, and conveniently forgets that no one has complied with this section of a statute or that rule or that order, and business of a kind is done.
But it would be far more satisfactory if the affairs of smaller people were not litigated, or at all events not litigated until an effort had been made to bring the parties together and get them to agree to a compromise. For think of the cost of much of this small litigation and what it may mean to a working man, and how much ill-feeling as well as hard-earned money would be saved if the parties could be brought together in some Courts of Conciliation or Reconcilement, and were not permitted to go to law until, as a condition precedent, they had been before the County Court judge and satisfied him that there was no chance of a settlement, and he marked their papers “fit” for litigation.
And though many will think this a revolutionary movement, yet in truth it is nothing of the sort. For the idea is as old as the hills—and Paul thought it a disgrace, even to the Corinthians—who were no great class, as I gather—for brother to go to law with brother. What he would have written to Lancashire about the spectacle of three or four brothers and sisters wrangling in the County Court as to whoshould pay for their father’s funeral tea—the sensible old man having died penniless—I scarce like to think. Luckily Paul wrote no Epistles to the Lancastrians. For when passions are roused, family feuds are fought with a bitterness that few can understand whose duty has not forced them to witness the wretchedness of it. And the day of awakening comes with the taxation of costs and a sense that all that has been done has been to give way to an orgy of unholiness in a public place and make a great hole in savings laboriously acquired.
But apart from the uncharitable nature of many law-suits let me set down the actual facts of one of the every-day cases which bring debt and ruin upon a home. A man had a dog which bit the child of a neighbour. The child was not greatly injured, but there was a small doctor’s bill to pay and a certain amount of anxiety on behalf of the parents. These people chose solicitors. After a lengthy correspondence a claim was brought for £25 by the parents of the child. Counsel were engaged. Doctors gave evidence on either side. Ultimately the case went against the plaintiff, on the ground that he could not provescienter, that is to say, that he did not satisfy the Court that the defendant knew that his dog had previously bitten someone else.
Now one need not blame the lawyers. If each party believed in his own case and wanted to fight, the lawyers only did their duty according to the system under which they work. The result was disastrous. Each party was ordered to pay his own costs,which worked out at something over £15 apiece. In any case, as I remember it, the plaintiff could only have recovered a few pounds, for the damage was but small.
Now Paul’s idea, and a valuable one, was summed up in the question “Is it so that there cannot be found among you one wise man who shall be able to decide between his brethren?” Only I think he overlooked the natural distrust that the average man has of a lay arbitrator. I do not think it would be reasonable to expect two members of a Welsh chapel, for instance, to leave their dispute to a deacon. The deacon knows too much of their inner life to start with, and would be bound to be suspected of partiality in his judgment. Paul’s idea of a Lay Court of Conciliation or Reconcilement was not practical politics in a work-a-day world. But when Brougham took up the idea and tried to get the House of Lords to help him put it into a business shape, one wonders that he got no assistance for so excellent a scheme. His plan was to make use of existing judges as conciliators, and the result of the combined teachings of the Saint and the Lord Chancellor seems to be that what you want is a sensible conciliator who shall also be a State official.
For in the dog-bite affair recorded above—supposing that there had been a Conciliation Court to which the plaintiff could have summoned the defendant, and both parties had appeared before the judge to talk it over—a little discussion might, one would think, have brought the parties to understandthat the payment of the doctor’s bill or some such course was a fair thing to do, and that pressing vague claims of damage could result in no useful purpose. And if the parties had agreed, they could have signed an agreement in the presence of the Conciliator, which, if not carried out, could afterwards be made an order of Court. But if the judge could not bring them to agree they could still go to law, and no great harm would have been done by their meeting.
And in claims under the Workmen’s Compensation Act there is good reason why some such course should be made compulsory. For when the Act was introduced, Mr. Joseph Chamberlain expected it to be an automatic scheme, and took credit for the government that “we have held it to be a first principle as well as one of our first objects to avoid litigation.” There were to be no lawyers employed and no appeals were to be allowed. What has happened in fact everyone knows. The Bill was so altered in Parliament and by succeeding legislation as to flood the County Courts with litigation of an expensive and difficult nature, and to clog the Court of Appeal with endless discussions on what are from the insurance point of view—and that is the business point of view—trifling matters. And every day one is face to face with the pitiable spectacle of a working man, not necessarily a malingerer—but a neurasthenic subject—physically fit to work, or at least to get into condition to work, and yet not capable of exercising the necessary willpower to do so, and gradually becoming more and more unfit. And the cause of the bulk of this is litigation. When a man is getting better and his mind should be turned towards work he has at his elbow a lawyer and a doctor, who, being human, have their scientific opinions biassed perhaps by the thought that only by carrying the case into Court can they hope to get any fees. The man is told it would be unwise to work both legally and physically. What is he to do? Is he to throw over his scientific advisers—why should he? Would you or I settle a case or abandon a claim against the advice of our lawyers? Nor do I blame the lawyer. He is there to advise, and often without his advice the man could not recover his rights, and certainly could not maintain his rights in the Court of Appeal and on to the House of Lords.
The lawyers are a necessary part of the scheme as it exists, and so are the doctors. They hinder the man from getting well and going back to work, but that is all part of the machine. The machine is not a bad one, and no one wants to see it scrapped. We want to return to the Chamberlain ideal and wheel our machine out of the Law Courts into the yard, and work it under the power of common sense. Only in that way can we escape some dishonourable responsibility for that half-malingerer, that weak, insincere invalid, the miserable remains of what was once a good workman, which is such a common object of the County Court.
I have no hesitation in saying that by a systemof conciliation 75 per cent. of the present litigation under the Workmen’s Compensation Act might be stopped, to the great benefit of the community. I would allow no Workmen’s Compensation Act case to go forward to litigation until employer and workman had come in person—or by lay deputy on the employer’s behalf—to discuss a way out. Many a workman would go back and try work again if he could go into a room and talk his affair over with a judge, and was assured that his interests would be cared for whilst he made the experiment.
The scheme of workmen’s compensation was intended by Mr. Chamberlain to be a businesslike and statesmanlike scheme of accident insurance to be administered by a County Court judge, acting as an arbitrator, with the assistance of a medical referee. There were, as I have said, to be no lawyers and no appeals, which to his business mind were merely things leading to “expense, annoyance, and irritation.” The statesman desired and intended a scheme for the benefit of employer and workman based on peace and conciliation, but the lawyers have been too many for him, and to-day the Workmen’s Compensation Act litigation is little better than a wild-cat legal gamble. To diagnose whether an accident arises out of or in the course of a workman’s employment you want a legal mind combining the subtlety of a Jesuit with the discrimination of a laboratory professor. And even then you may fail if your mind is anything but an exact replica of two out of the three of those whowill ultimately sit to hear the appeal. Nor is there indeed always safety in that, for there is the House of Lords to come—and if you think the word “gamble” is too strong a word for the existing state of things, ring them up at Lloyds and ask for the current rate of odds against any Workmen’s Compensation Act appeal on its voyage from the Strand to Westminster.
But it will be said, is not all this rather an attack on the writer’s own profession? I do not think so. I have tried to make it clear that I blame the system, and not the individuals who have to work it. And though I believe that any sort of Court of Reconcilement or Conciliation must in time do away with much litigation, I do not necessarily think that a bad thing for the profession. How often to-day do lawyers try and keep their clients from litigation and promote compromise to their own cost, to satisfy their high ideals of right action. I am far from thinking it desirable that we should keep alive a system of litigation that we believe harmful to the community because it brings in fees to ourselves. The spectacle in “Jarndyce v. Jarndyce,” where “eighteen of Mr. Tangle’s learned friends, each armed with a little summary of eighteen hundred sheets, bob up like eighteen hammers in a pianoforte, make eighteen bows, and drop into their eighteen places of obscurity,” may have pleased the unthinking lawyer of the day, but Dickens, with prophetic foresight, knew more about it than the Bar. It had to be swept away. And has it ruined the Chancery Bar?—ask them inLincoln’s Inn. The fact is that if we are to maintain in the face of better-educated and more thoughtful citizens the privileges and traditions of the Bar, we must satisfy ourselves and the world that the work we are doing is worthy, useful work beneficial to the community. When it fails to come up to that standard, it ought to be joyfully surrendered.
Nor do I think that my suggestions would, even if they were carried out by a stroke of the pen, injure any practitioner to any serious extent. New problems are arising daily and new work is waiting to be done. But whether the results of conciliation would be to the injury of the profession or not, before anything is done the lawyers will have their say on it in the Houses of Parliament, where their number is legion, and where, as far as I can make out, the poor litigant, the client whose interests I am saying a word for to-day, is wholly unknown and unrepresented.