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.