CHAPTER XIII

THE PEARK

’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 dreamed that 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

Right Honourable 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 great

misfortune 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 _v._ Smith’,”

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 which they 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 jury cases, 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 the litigants. 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 this matter 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 my mind 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 help thinking 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 to everything

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 who should

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 prove

_scienter_, 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 understand that 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 will power 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 system of 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 who will 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 in Lincoln’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.

What the Judge Saw: Being Twenty-Five Years in Manchester by One Who Has Done It · 第 13 / 18 章