299 2 Marcus Aurelius. "Meditations." Book IV., par. 31.
303 3 Rudyard Kipling. "The Five Nations." "Stellenbosh," p. 194.
THE LAW AND THE POOR
CHAPTER I
PAST AND PRESENT
In a word we may gather out of history a policy no less wise than
eternal; by the comparison and application of other men's fore-passed
miseries with our own like errors and ill-deservings.
SIR WALTER RALEIGH: "History of the World."
Oxford edition. Vol. II., Preface v. and vi.
I often feel that if that excellent patriarch Job had been alive he would
have sent me a postcard indited, "O that ye would altogether hold your
peace and it should be your wisdom." I have an anonymous friend who sends
me frank criticisms of that kind on postcards. The sentiments are the same
as Job's text, but the language is fruitier. Nevertheless, I like to hear
from him, for he is an attentive reader of all I write. But, honestly,
although I was always sorry for Job and glad when he came into his camels
and donkeys in the last chapter, yet I never sympathised with his attitude
of taking his troubles lying down. After all, if one has gained a little
practical experience of the law and the poor by living and working with
them for twenty years it seems a pity to take it with you across the ferry
into the silence merely because you have a bashful and retiring
disposition. It is right, of course, to give your views and services to
Select Commissions and the like,--but that is no better than hiding a lump
of gold in a hole in the ground. The wiser plan is to try and tell the
law-makers of the future--the men in the street--what is wrong with the
machine, so that when they take it over, as they must do some day, they
will not scrap it in mere despair, but tune it up to a faster and nobler
rhythm. Job, great, good, patient soul that he was, had his sour
moments--a medical friend of mine believes that he had a liver,--I am
sorry not to take the patriarch's advice, but I do not see my way to hold
my peace about the law and the poor, and that is why I propose to try and
point out how and why the law as a system is hard on the poor, and wherein
the governors and great ones of the earth may further temper the wind to
the shorn lamb. I myself do not expect to enter into the promised land of
legal reform, but I am as sure that the younger generation will see it, as
I am sure that they will see the rising sun if they ever get up early
enough. The man at the door of the booth who beats the drum and calls out
to the young folk in the fair to walk up and see the show plays a helpful
part, though the old gentleman knows that he is doomed to stand outside
and never make one of the audience. Moses was like that, but he did useful
work in booming the promised land.
An eminent socialist complained to me with tears in his eyes that nothing
was being done for the poor. I do not agree. Not enough, certainly, but
something, and every day more and more. The world is a slow world, and
Nature, like all such artisans, does her building and painting and
decorating with exasperating deliberation. Geology is slower than the
South Eastern Railway. But no doubt Providence intended each of them to go
at the pace they do for our good. And it is impious to grumble.
Nevertheless, if I were a sculptor called upon to design a symbolic statue
of Nature, I should model a plumber. Slow, hesitating, occasionally mixing
the taps and flooding the world's bathroom or exploding the gas mains in
the cellars of the earth, but in the end doing the job somehow--such is
the way of Nature. You cannot cinematograph the growth of the world or its
rocks and trees and human beings--to study Nature you want long life and a
microscope. And the only way to make out whether the tide is coming in or
out is to place a mark upon the shore and wait and see. It is the same if
you are travelling an unknown road--you measure your progress by the
milestones. In this matter of the law and the poor, if we want to know
where we are to-day and where we are likely to be three hundred years
hence, the only sane way to make the experiment is to go back to what we
know of things in the past, and, by measuring the progress made in bygone
centuries, take heart for the morrow. That is what Sir Walter Raleigh
meant when he told us how to gather a sane policy for to-day out of the
blunders and troubles of yesterday.
As I grope my way back along the main road of the history of the law into
the dark ages I seem to find the milestones of reform set at longer and
longer intervals. This puts me in good heart for the happy youths whose
lot it will be to set their faces towards the morning breezes of the
future. Their milestones will come at shorter intervals every day, until
the burden of the law drops from the shoulders of the poor at the wicket
gate.
There is no greater folly than to sing the praises of the good old days.
Anyhow, the law had no good old days for the poor. Stroll down to the
dockyards with Samuel Pepys; take a walk down Fleet Street with Dr.
Johnson; or, even as late as the days of Charles Dickens, go round the
parish with Mr. Bumble. You will learn in this way better than in any
other how the law has treated the poor in the good old days. I have a
quaint little volume written for the Dogberries of the early eighteenth
century called "The Compleat Constable." It is amazing to read of the
tyranny of the law towards the poor and the homeless of those days.
The statutes made for punishing rogues, vagabonds, night walkers and such
other idle persons are, says the anonymous legal author, "a large Branch
of the Constable's Office, and herein two things are to be known:--
"(1) What is a Rogue and who is to be accounted a Vagabond?
"(2) What is to be done unto them?"
The charming impersonal technical spirit of this little work is beyond all
praise. Not a word is ever used to remind you that, after all, a rogue
and a vagabond is a man and a brother. You are taught first to diagnose
him as Izaak Walton would teach the young angler how to discover the
singling that did not usually stir in the daytime, and having captured
your rogue and vagabond, you are then enlightened as to the various
methods of killing or curing him.
And first you are to note that all persons above the age of seven, man or
woman, married or single, that wander abroad without a lawful passport and
give no good account of their travel are accounted rogues. Then follows a
very lengthy list of such as are "of a higher degree and are to be
accounted as Rogues, Vagabonds and sturdy Beggars." Such are all Scholars
and Sea-faring men that beg, wandering persons using unlawful games,
subtle crafts, or pretending to have skill in telling of fortunes by the
marks or figures on the hands or face, Egyptians or Gypsies. All Jugglers
or Slight-of-hand Artists pretending to do wonders by virtue of Hocus
Pocus, the Powder of Pimper le Pimp, or the like; all Tinkers, Pedlars,
Chapmen, Glassmen, especially if they be not well known or have a
sufficient testimonial. All collectors for Gaols or Hospitals, Fencers,
Bearwards, common players of interludes, and Fiddlers or Minstrels
wandering abroad. Also Persons delivered out of Gaols who beg their fees,
such as go to and from the Baths and do not pursue their License, Soldiers
and Mariners that beg and counterfeit certificates from their commanders.
And, lastly: "All Labourers which wander abroad out of their respective
Parishes, and refuse to work for wages reasonably taxed, having no
Livelyhood otherwise to maintain themselves, and such as go with general
Passports not directed from Parish to Parish."
In a word, all the unfortunate poor who would not do as they were told by
their pastors and masters and wanted to work and amuse themselves in their
own way were rogues and vagabonds. And it is not without interest to run
your eye over this list, for the statutory rogue and vagabond is still
with us and our Poor Law of to-day suffers from its direct hereditary
connection with the Poor Law of the eighteenth century.
The duty of "The Compleat Constable" was, in the words of Dogberry, to
"comprehend all vagrom men" and he was liable to a fine of ten shillings
for every neglect. Moreover, if you were a stalwart fellow, you could
apprehend your own rogue and vagabond and hand him over to the constable,
who was bound to receive him.
Having dealt in accurate detail with the classification and identification
of rogues, we come next to the chapter on treatment, which is best given
in the simple words of the original. "The Punishment is after this manner.
The Constable, Headburrough or Tythingman assisted by the Minister and one
other of the Parish, is to see (or do it himself), That such Rogues and
Vagabonds, etc., be stript Naked from the middle upwards and openly
Whipped till their Body be bloody and then forthwith to be sent away from
Constable to Constable, the next straight way to the place of their
Birth; and if that cannot be known then to the place where they last
Dwelt, by the space of one whole Year before the time of such their
Punishment; and if that cannot be known then to the Town through which
they last passed unpunished." If, however, none of these habitats was
discoverable, the vagrom man was sent to the house of correction or common
gaol, where he was put to hard labour for twelve months.
It is only fair to remember, "that after such Vagabond is whipt as
aforesaid he is to have a Testimonial"--is this the origin of people
asking for testimonials?--"under the Hand and Seal of the Constable or
Tything-man and the Minister testifying the day and place of his
Punishment; as also the place to which he is to be conveyed, and the time
limited for his own Passage thither: And if by his own default he exceed
that time then he is again to be whipt--and so from time to time till he
arrive at the place limited."
In the good old days of Merrie England the chief entertainment of the
villagers must have been to crowd round the stocks and the whipping post
on the village green--some of which are existing to this day--just as
their city cousins swarmed along the road to Tyburn. And if you had
suggested that the players or the fiddlers were a more wholesome amusement
for the people than these cruel sights, you would not only have shocked
the minister but would have rendered yourself liable to be treated as a
vagrom man and to receive a testimonial from the constable. It is easy
to-day to see the wrongdoing of much of this, but it was not to be
expected that the citizens of the time should see any evil in the everyday
cruelties they were used to. The law seems to have been hard on the poor
then, but very few worried about it.
History is constantly showing us that in matters touching the
imperfections of our own system of law we are colour blind to the
cruelties we commit ourselves and easily moved to indignation by the
horrors and wickednesses committed by foreigners, especially if they are
foreigners who have never known the blessings of the particular religion
we profess. When Fynes Moryson was travelling in Turkey at the end of the
sixteenth century, he set down with reasonable detestation some of the
gruesome things he observed. "Touching their Corporal and Capital
Judgments," he writes: "For small offences they are beaten with cudgels on
the soles of the feet, the bellies and backs, the strokes being many and
painful according to the offence or the anger of him that inflicts them.
Myself did see some hanging and rotting in chains upon the gallows."
Yet in England he might have seen many of his fellow countrymen hanging
and rotting in chains, for there was at that date and for many years
afterwards no country with a more evil record than England for the
practice of capital punishment for minor offences. As to mere corporal
punishment, there was not a village in England without its whipping post,
and a common sight in the streets of the city was to see a poor wretch
being whipped at the cart's tail. In ordinary cases the journey was from
Newgate to Ludgate, or from Charing Cross to Westminster, but for really
bad cases it was extended from Newgate to Charing Cross. And not only did
these punishments exist in England, but the populace enjoyed them. One of
the sights of London was to see the women whipped in the Bridewell. The
Court of Governors held their board meeting, presided over by a
magistrate, and the sentence was executed in their presence and continued
until the President struck the table in front of him with a hammer. The
cry, "O good Sir Robert, knock! Pray, good Sir Robert, knock!" which the
victims screamed out whilst under the lash, became a common slang cry
among the lower orders in the streets of London in the seventeenth
century.
There can be no doubt about the horrors of the old prisons, but it was
only men and women of especial insight who recognised that there was real
evil in them. Literature and art did much to arouse the public conscience.
There is a strong description of the Bridewell in "Roderick Random," where
Smollett makes Miss Williams tell her life story. In this prison, she
says, "I actually believed myself in hell tormented by fiends; indeed,
there needs not a very extravagant imagination to form that idea; for of
all the scenes on earth that of Bridewell approaches nearest the notion I
had always entertained of the infernal regions. Here I saw nothing but
rage, anguish and impiety; and heard nothing but groans, curses and
blasphemy. In the midst of this hellish crew I was subjected to the
tyranny of a barbarian who imposed upon me tasks that I could not possibly
perform and then punished my incapacity with the utmost rigour and
inhumanity. I was often whipped into a swoon and lashed out of it, during
which miserable intervals I was robbed by my fellow-prisoners of
everything about me even to my cap, shoes and stockings: I was not only
destitute of necessaries but even of food, so that my wretchedness was
extreme."
No one need suppose that Smollett is guilty of exaggeration, for the
well-known plate of Hogarth shows us the actual scene and the records of
the place are numerous. There were, of course, just as many good and
charitable men and women then as there are now, but the possibility that a
Bridewell was a thing that the world had then no use for was entirely
beyond the thought of the eighteenth century citizen. In the same way how
few of us recognise that there is much room for reform in the penal system
of to-day.
It is natural that it should be so. We arrive in the world knowing nothing
much about it, we are brought up to believe that everything that has been
going on for the last few centuries has been for the best, and the tired
old ones who are leaving us are never tired enough to leave off telling us
that they have made every possible reform that it was safe and advisable
to make. In the few years of hustling life and in the scanty hours that he
can spare from earning his daily bread the average citizen has little time
and opportunity to investigate the social system of which he is a unit, or
to understand how or why the wheels of the world machine are grinding
unevenly. When we read of the horrors of two or three hundred years ago,
it should not be to cast a reproach against our fathers, but rather to
learn who were the men and women who moved the world of that day to see
things as they were. These glorious spirits have enabled us to enter upon
our inheritance free from the worst degradations of the past and we may
best render them thanks and praise by learning to follow their example.
I make no doubt that most of us are much like old Fynes Moryson, who,
being an ordinary average Englishman, saw the everyday horrors of his own
country, but was in no way impressed by them, yet was moved to grave
indignation at the wickedness and cruelties of foreigners. Truly the
seventeenth century Turk was a cruel beast. Moryson tells us with honest
reprobation, but in gruesome detail, of the Turkish methods of impaling,
where a "man may languish two or three days in pain and hunger; if torment
will permit him in that time to feel hunger for no man dares give him
meat," and of casting down malefactors to pitch upon hooks and other
nameless horrors. Yet if he had been in London on October 19th, 1615, and
dropped into the Guildhall, he might have heard the Lord Chief Justice of
England, the great Coke, using much persuasion to Richard Weston, who,
being accused of the murder of Sir Thomas Overbury, stood mute, refusing
to plead.
Coke and his brother judges, having failed to persuade the wretched Weston
to utter a plea of not guilty, the Lord Chief Justice repeated for his
benefit the law of England at that time and reminded him that the prisoner
who wilfully stood mute must undergo the _peine forte et dure_, the
extremity and rigour whereof was expressed in these words, "_Onere,
frigore et fame_." "For the first," continued his Lordship, "he was to
receive his punishment by the law, to be extended and then to have weights
laid upon him no more than he was able to bear which were by little and
little to be increased. For the second, that he was to be exposed in an
open place near the prison in the open air, being naked. And; lastly, that
he was to be preserved with the coarsest bread that could be got, and
water out of the next sink or puddle to the place of execution, and that
day he had water he should have no bread, and that day he had bread he
should have no water; and in this torment he was to linger as long as
nature could linger out so that often times men lived in that extremity
eight or nine days; adding further that as life left him so judgment
should find him. And therefore he required him upon consideration of these
reasons to advise himself to plead to his country."
Notwithstanding this advice the wretched man continued mute, but after a
consideration, during an adjournment of three or four days, of the law of
procedure as laid down by Lord Chief Justice Coke, Weston thought better
of it and pleaded not guilty, and was duly convicted and executed.
How illogical it seems that a citizen whose State executed this form of
torture on its prisoners should hold up the holy hands of horror at the
variations of cruelty that satisfied the lust of the unspeakable Turk! The
_peine forte et dure_ remained one of the pillars of our law until the
reign of George III. and was carried into execution in the reign of Queen
Anne and George II.--so obstinately do we cling to our ancient precedents
and so fearful are we of facing the narrow paths that lead to better
things.
When Oliver Goldsmith wrote, "Laws grind the poor and rich men rule the
law," I do not know that he wished to make any specially unkind attack
upon the rich. I imagine he merely intended to state a fact which seems in
all ages to have been universally true. I do not suppose that in the
middle of the eighteenth century anyone in the least recognised the actual
horrors that were going on around him unless it was some poet and dreamer
like Oliver himself. The strong, sensible men of that generation were as
assured of their own righteousness as they are to-day.
Dr. Johnson told Dr. Maxwell that "the poor in England were better
provided for than in any other country of the same extent; he did not mean
little cantons or petty republics. Where a great proportion of the people
(said he) are suffered to languish in helpless misery that country must be
ill-policed and wretchedly governed; a decent provision for the poor is
the test of civilisation. Gentlemen of education, he observed, were pretty
much the same in all countries; the condition of the lower orders, the
poor specially, was the true mark of national discrimination."
The good Doctor rolled all that excellent stuff out one evening in 1770 to
the Rev. Dr. Maxwell, the assistant preacher of the Temple, who, like
Boswell, faithfully recorded what he remembered of it in the morning--I
doubt not that if Dr. Johnson had lived in 1670, or 1870, or 1970, or had
flourished under Caligula or Nero, he would have rolled out the same
sonorous complacent nonsense to some sort of faithful human gramophone who
would have recorded the utterances of his master's voice with a canine
credulity in its omniscience.
There is nothing extraordinary in the divergence of the views of Oliver
Goldsmith and Dr. Johnson about the law and the poor. The good Doctor held
the strong, sensible, Tory view that the system of treating the poor
handed down to us by our forefathers was the right and proper system, that
it was at least as good as any other system, that nothing anyhow could be
learned from the hated foreigner, and that to pander to dreamers and
busybodies, who found fault and wanted to alter things, was to start down
the broad road of destruction. Oliver Goldsmith might have thought the
same thing if he had been an Englishman, but he had the saving grace of
Irish blood in his veins, and the true Irish have the power of looking
beyond the present, and are often prophets and dreamers of dreams, seeing
signs and wonders that we wot not of.
"Sir!" said Dr. Johnson on another occasion, and when he began like that
you knew that wisdom was about; "the age is running mad after innovations;
all the business of the world is to be done in a new way; Tyburn itself
is not safe from the fury of innovation."
It having been argued that this was an improvement--"No, sir (said he
eagerly), it is not an improvement; they object that the old method drew
together a number of spectators. Sir, executions are intended to draw
spectators. If they do not draw spectators, they don't answer their
purpose. The old method was most satisfactory to all parties; the public
was gratified by a procession; the criminal was supported by it. Why is
all this to be swept away?"
And Boswell and Sir William Scott nodded approval, just as you and I would
have done or do now when some important old gentleman lays down the law
about something of which he knows perhaps even a little less than we do
and we are too courteous or cowardly to tell him that at the back of our
minds we believe he is talking nonsense.
If you would be gratified by a Tyburn procession, you may see one any day
for yourself in Hogarth's print of the awful end of the Idle Apprentice.
The ragged men, women and children bawling dying speeches about the
streets, the criminal in the cart sitting beside his coffin, the chaplain
exhorting the poor outcast, who, if he still courted popularity, scoffed
openly, shouting to his friends on St. Sepulchre's steps where they stood
with their nosegays to give their pal a last greeting. What a solemn
impressive scene! All the way up Holborn there is a crowd so great that
every twenty or thirty yards the cart is pulled up, and now someone brings
out wine and the malefactor drinks a last toast. And when he reaches the
fatal tree the ribald mob swears and laughs and shouts out obscene jests.
Amid these noises a psalm is sung and the sound of it drowned in filthy
tumult. So was the life of a fellow sinner brought to an end in the
eighteenth century.
And there were men and women who wanted to abolish it all. It was too much
for Dr. Johnson. "Tyburn itself not safe from the fury of innovation!"
Fancy that! What a terrible outlook! The law deserting the poor and giving
them no more cheap excursions to Tyburn--well might the good Doctor shake
his dear old head and prophesy woe.
And when Dr. Johnson upheld the English treatment of the poor in 1770, we
may suppose he knew as much about it as a literary professor of to-day
knows about what is going on in the workhouse, or the police court, or the
County Court of our own time. The belief that the world is the best
possible of worlds has its value in making for the stability of things,
but mere ignorance of the facts of life, coupled with that strange form of
piety which accepts whatever system was good enough for a past age as the
only possible system for this, renders the pace of social reform as
imperceptible to the human mind as the movements of glaciers.
If a history of the law and the poor were to be written, it would be a
story of the lower classes emerging out of slavery into serfdom, out of
serfdom into freedom of a limited character, and every age finding new
abuses to remedy and trying in some small way to rid the law of some of
those traits of barbarism which linger in its old-world features. To each
new generation the terrors of the past iniquity of the law are mere
nightmares. We can scarcely believe that what we read is true any more
than our grandchildren will be able to understand how we were able to
tolerate some of the everyday legal incidents of our daily courts.
Less than a hundred years ago at Salford Quarter Sessions there were over
two hundred prisoners, all poor and mostly very young, and the law thought
nothing of transporting them for life or fourteen years as a punishment
for small thefts. And horrible as all this cruelty was, yet I make little
doubt that the judges of the time, with very few exceptions, administered
the law as humanely as they do to-day. Sir Thomas Starkie, the learned
Chairman of the Salford Epiphany Quarter Sessions in 1824, no doubt felt
very grieved when he sentenced Martha Myers, aged sixteen, and Mary Mason,
twenty-four, to seven years' transportation. I expect he thought he was
"giving them another chance." Perhaps he was. We do not know. They may
have become the mothers of big-limbed colonial aristocrats instead of
peopling the Hundred of Salford with another generation of feeble-minded
criminals.
Nowadays there is a tendency among the less discerning of mankind to set
down all the rough edges and inequalities of the law to the fault of the
judges, though in truth they have but a small part in the making of new
laws, and I do not think they can be rightly blamed for harsh
administration. They get the blame because they are the figure-heads of
the show, so to speak, and the public know nothing of the difficulties
under which the judges labour. It is their duty to administer the
complicated modern laws turned out by Parliament in a somewhat haphazard
fashion, and they are bound to keep alive old-world laws that ought long
ago to have been shot on to the rubbish heap. Nearly all the law relating
to the poor will be found to be defective to our modern sympathies, just
because it is a patching up of the ancient cruel pagan law of past ages
and does not break bravely away from the old superstitious uses and close
for ever the volumes of laws that were made in the days when liberty and
equality and fraternity were words of anarchy and rebellion.
The poor are suffering to-day at the hands of the law because in the
evolution of things we have a lot of old derelict law made by slaveowners
for slaves, by masters for serfs, by the landlords for the landless. It is
law that has no more relation to the wants of to-day, and would be of no
more purpose to a Ministry of Justice--if we had one--than crossbows and
arquebuses would be to the War Office, or coracles to the Admiralty. And,
instead of cursing the judges, who, poor fellows, are doing their best, I
wish our parliamentary masters would look into the history of the matter.
They would find, I think, that in the last few years enormous reforms have
been made in modifying the cruelty of the law to the poor, and might
discover, by marking back on the track of past reform, the lines upon
which further evolution may be hastened. One thing, I think, they will be
convinced about: it is not the judges who are hard on the poor, it is the
law. It is the sins of the lawgivers of the past that the poor are
expiating to-day.
CHAPTER II
THE ANCIENTS AND THE DEBTOR
My thoughts are with the Dead, with them
I live in long-past years,
Their virtues love, their faults condemn,
Partake their hopes and fears,
And from their lessons seek and find
Instruction with a humble mind.
ROBERT SOUTHEY:
"My Days among the Dead are past."
I find this question of the debtor, and our modern method of imprisoning
the poorer variety of the genus, in the forefront of any consideration of
the problem of the law and the poor, because to my mind it is a clear and
classic instance of the way in which it comes about that the law with us
is a respecter of persons.
The physiological tutor will take his pupils into the laboratory and cut
up a rabbit to show them where their livers ought to be, the microscopist
will choose a newt to exhibit to you the circulation of the blood, and in
like manner, for my purposes, the debtor seems to me to possess all the
necessary legal incidents in him through which one can give an excellent
object lesson on the law and the poor. There is no legal mystery about a
debtor; he is a common object of our legal seashore, as ancient of
lineage as the periwinkle and sometimes almost as difficult to get at.
Everyone has in his life at some time or other been a debtor, though not
all of us have attained to the dignity of a co-respondent, a mortgagor, a
garnishee, a bankrupt or a _cestui que trust_.
It seems to me that to demonstrate to the man in the street the unfairness
of our law of imprisonment for debt is such a feasible proposition, that I
have come to regard the subject as very fitting for the citizen's
kindergarten education on legal reform. Once understand the history, and
the causes of the continued existence, of imprisonment for debt, and its
evil effect on right action, conduct and social life, and you will find it
easier to diagnose the more obscure legal diseases which are partially the
outcome and partially the cause of much real distress among the poor.
Carlyle tells us to "examine history for it is philosophy teaching by
experience," and, if we take his advice in this matter of imprisonment for
debt, we shall, I think, be bound to admit that what is going on among us
day by day in the County Courts of this country is in historical fact a
relic of a very ancient barbarism.
It is the more extraordinary to me that this relic should still be
venerated, since history also makes it clear that teachers, prophets and
law-givers of all ages have testified to their sense of the cruelty and
injustice of the law which thrusts a man into prison because he does not
pay his neighbour what he owes him. I propose, therefore, before I set
down exactly what we are doing to-day, to trace the pedigree of our
present system of dealing with debtors and show you historically and
cinematographically, as it were, how the world has treated its debtors in
the past and what the saner men of different ages thought about it at the
time. In this way the man in the street of to-day will have the material
for forming a sound judgment on the question of what we should do with the
poor debtor.
And to begin with the Old Testament. Let us remember with gratitude the
remarkable action of Elisha in the matter. Elisha went the length of
performing a miracle to pay the bailiffs out. There are many poor widows
in the mean streets of our own cities looking down the road for the Elisha
of to-day who cometh not. Miracles do not happen nowadays; people don't do
such things. Still it is interesting to know that there was imprisonment
for debt in Elisha's day, just as there is now--for the poor and only for
the poor--and it is encouraging to know what Elisha thought about it.
What happened was this:--
The County Court bailiffs of the County Court of Israel, holden at
Samaria, went with a body-warrant to seize the two sons of a poor widow on
behalf of a creditor of her late husband, just as they might do to-day.
Fortunately, the deceased had been a servant that did fear the Lord, and
Elisha, hearing of the trouble, went down to the house, and in that
simple, kindly way that the dear old prophets had of putting little
troubles straight for members of their congregations and also no doubt to
show the contempt he had for the proceedings of the County Court of
Samaria, sent the widow out to borrow empty vessels of her neighbours.
These he miraculously filled with oil of the best, and the only pity of it
was that there were no more vessels to fill, for Elisha was in form that
morning, and was sorry to stop. When it was over he said to the widow: "Go
sell the oil and pay thy debt and live thou and thy children of the rest."
I am very fond of that story. I like to believe it really happened. I wish
it could happen to-day, for there are many poor women in much the same
straits as that poor widow. I have never heard the text referred to in
churches and chapels, and I am not surprised. A minister who preached
about it would have to explain that he could not do miracles of that kind
himself, and if he were to do the next best thing and preach about the
iniquity of imprisonment for debt straight from the shoulder--as I am sure
Elisha would have done--the respectable credit draper, the pious grocer,
and all the noble army of tally-men would get up in their pews and walk
out of his church or chapel in disgust.
The days of miracles are past, but if it was worth while for a holy man
like Elisha to show what he thought about imprisonment for debt, by means
of a miracle, surely, after all these ages, we might have improved that
particular piece of barbarism off the face of the earth.
But no. The poor are worse off now than they were then. The bailiffs come
for their bodies on behalf of their creditors still. And they look down
the road in vain. There is no Elisha.
And when you come to the New Testament the matter is laid down even more
clearly. Matthew vi. 12 has the actual words of Our Lord's Prayer to be,
"And forgive us our debts as we also have forgiven our debtors." If the
forgiveness of our debtors is a condition precedent to our own
forgiveness, most of us are in a parlous state. But is it too much in this
Christian country of ours to suggest that, even if the highest ideals of
the Master are beyond our attainment, we need not insult our belief by
continuing a barbaric pagan system of cruelty which has been singled out
for special disapprobation by the Word that we cannot shut our ears to?
You remember the parable of the king that took account of his servants
which Matthew sets out in his eighteenth chapter. How a servant owed the
king ten thousand talents and, as he had not wherewith to pay, his lord
commanded him to be sold, and his wife and children, and all that he had,
and payment to be made. Note that in those days the wife and children were
actually sold into slavery. We do not do that: we remove the bread-winner,
only, to gaol and care for his wife and children in the workhouse. It is
encouraging to find this much reform after nineteen Christian centuries.
The servant, you will recollect, pleaded with the king, saying, "Have
patience with me, and I will pay thee all." Debtors have not altered much
since that date, and the text has a familiar ring in the ears of a County
Court judge. The lord of that servant, being moved by compassion,
released him and forgave him the debt. This is important to remember, for
the servant being forgiven his debt was without excuse for his subsequent
contemptible conduct. And, indeed, I have often found that men who have
been most leniently treated in their own failures by those in a better
position, are themselves most greedy in extorting the uttermost farthing
from their smaller victims. Speaking generally, it is not the most
desirable class of trader that makes use of the debt-collecting system of
the County Court.
The servant of the parable was the meanest of curs. He "went out, and
found one of his fellow-servants, which owed him a hundred pence: and he
laid hold on him, and took him by the throat, saying, Pay what thou
owest." Here, again, we may flatter ourselves on our superior procedure.
If this had happened in Lambeth, the servant would not have been allowed
to go for his fellow servant with such jubilant audacity. Nowadays
everything would be done in legal decency and order. The debt being for a
hundred pence, and, therefore, being within the jurisdiction of the County
Court, a summons would have to be issued, fees would have to be paid to
the Treasury and the Court officials, and a lot of money spent and added
to the debt before imprisonment followed. Still the rough-and-ready
methods of the earlier centuries were certainly cheaper, and the result
was much the same. For we read that, though the fellow-servant pleaded in
the same formula, "Have patience with me, and I will pay thee," the
creditor of the hundred pence stood firm for his rights and cast his
fellow servant into prison till he should pay his due.
And if this had been a repertory drama and not a parable, the curtain had
fallen on that scene and one would have come away depressed with the
abjectness of human nature and with a cold feeling that the world was a
drab uncomfortable place. But the ancient dramatic stories always have a
happy ending. There is more of the spirit of the old Adelphi than of the
Gaiety Theatre, Manchester, about the parables. The lord hears of his
servant's scurvy behaviour and, to the delight of all sane men of
child-like and simple faith, the wicked servant is delivered to the
tormentors till he shall pay all that was due.
I confess that my legal mind has been haunted with the thought that, the
lord having forgiven the servant his debt, it was rather a strong order
for him to go back on that forgiveness. Doubtless there was no
consideration for the forgiveness, it was _nudum pactum_, or there may
have been an implied contract that the servant should do unto others as he
had been done by, but I rather expect the lord and his advisers only
considered the justice of their act rather than its technical legal
accuracy. But one thing we can rejoice in. There is the dramatic story,
and no one can construe it into approval of any form of imprisonment for
debt.
I know that many who do not regard the Bible as an authority will not be
troubled about this testimony; probably many more who do read the
Scriptures for guidance will be pained that anyone should make use of
holy words to upset a system that they find so useful in the commercial
weekdays of life. Moreover, some will shake their heads and remind me that
"the devil can cite Scripture for his purpose." That is true enough. But
it will be a very clever devil who can cite any Scripture in support of
section 5 of the Debtors Act, 1869.
And I will pass away from scriptural precedents to others which, though to
me they possess a less compelling sanction, will perhaps have more weight
with men of the world. In the history of ancient Greece the debtor played
an important part. Let me remind you what the Archon did.
The particular Archon I refer to is Solon.
Solon knew all about imprisonment for debt, and his evidence on the
subject is most convincing. It is well to remember, too, that Solon was a
business man--I have this from Grote, who got it, I fancy, from Plutarch.
Exekestides, Solon's father, a gentleman of the purest heroic blood,
"diminished his substance by prodigality," and young Solon had to go into
business; in modern phrase, he "went on the road," and saw a lot of the
world in Greece and Asia. I mention this because I am always told that if
I knew anything of business I should understand the necessity of
imprisonment for debt. Solon was emphatically a business man. Solon was
also a poet, which perhaps was his best asset as a social reformer, but he
was no sentimentalist if, as some say, when he was a general attacking a
rebellious city he ordered the wells to be poisoned to put an end to the
strife.
When Solon in a time of grand social upheaval was made Archon, he found
the poorer population, including particularly the cultivating tenants,
weighed down by debts and driven in large numbers out of freedom and into
slavery. Let me set down the condition of things in the careful words of
Grote lest I appear to exaggerate.
"All the calamitous effects were here seen of the old harsh law of debtor
and creditor--once prevalent in Greece, Italy, Asia, and a large portion
of the world--combined with the recognition of slavery as a legitimate
status, and of the right of one man to sell himself as well as that of
another man to buy him. Every debtor unable to fulfil his contract was
liable to be adjudged as the slave of his creditor, until he could find
means either of paying it or working it out; and not only he himself, but
his minor sons and unmarried daughters and sisters also, whom the law gave
him the power of selling. _The poor man thus borrowed upon the security of
his body_ (to translate literally the Greek phrase) and upon that of the
persons in his family."
The words I have italicised are interesting as exactly defining the
principle of all imprisonment for debt. A wage earner to-day who runs up
bills with tally-men and grocers obtains credit upon the security of his
body.
I have heard from the wife of a poor debtor an apt but unconscious
translation of the Latin maxim, _Si non habet in aere luat in corpore_.
Her allegation was that a tally-man had said to her husband, "If I canna
'ave yer brass I'll tek yer body." In the north country, among the more
old-fashioned bailiffs and their victims, warrants of arrest are commonly
known as "body warrants." No doubt the imprisonment of to-day is different
in degree from the slavery of debtors in Greece five hundred years before
Christ, but it is absolutely the same in principle, founded on the same
idea, and worthy to be maintained or abolished by the citizens of this
State for the same reasons that were found good by the citizens of Athens.
Thus it is that it is worth while finding out what Solon thought about it.
I wish Solon's tract, "What the Archon Saw," had come down to us, and we
could have quoted actual instances of the wickedness of imprisonment for
debt in his day, but at least we know what he thought of it, and, what is
really important to us, what he did. Solon had a pretty wit in titles. He
called his bill _Seisachtheia_, or the shaking off of burdens. The relief
which it afforded was complete and immediate. It cancelled at once all
those contracts in which the debtor had borrowed on the security of his
person or his land; it forbade all future loans or contracts in which the
person of the debtor was pledged as security; it deprived the creditor in
future of all power _to imprison_ or enslave or extort work from his
debtor, and confined him to an effective judgment at law, authorising the
seizure of the property of the latter.
This was indeed a shaking off of burdens. For here we find, not only was
imprisonment for debt abolished lock, stock and barrel, but a law enacted
protecting the land of the cultivator from being seized for debt. This is
akin to what in some of our colonies is called a homestead law, and I have
always contended that in the interests of the State the few sticks of
furniture which a poor man and his wife and children always call "the
home" should be protected from arrest for debt, just as the bread-winner's
body should be exempt from imprisonment. I could have got along with
Solon.
And when one is told the old tale that continues to be put forward by
those who wish to retain imprisonment for debt--that the workman will
starve for want of necessary credit and that trade will stagnate owing to
timid creditors refusing to trade--let us remember with pleasure that that
was not what the Archon saw as a result of his beneficial measures. On the
contrary, the testimony is overwhelming that there grew up a higher and
increasing respect for the sanctity of contracts. The system of
credit-giving, and especially of moneylending, assumed a more beneficial
character, and "the old noxious contracts, mere snares for the liberty of
a poor free man and his children"--the flat-traps of to-day--disappeared.
What happened was what will happen here when we abolish this degrading
system of giving credit on the sanction of body warrants. What happened in
Athens was that, although there were some fraudulent debtors, the public
sentiment became strongly in favour of honesty, and it is agreed that the
prophecies of Solon's failure were not made good, and "that a loan of
money at Athens was quite as secure as it ever was at any time or place of
the ancient world." Furthermore, it is acknowledged by the better
authorities that what I expect and believe will happen in the mean streets
of England when imprisonment for debt is abolished, actually did happen in
Athens, and, to use Grote's words, "the prohibition of all contracts on
the security of the body was itself sufficient to produce a vast
improvement in the character and conditions of the poorer population."
Of course, I am not putting forward "What the Archon Did" as an example to
the Archons who Didn't of to-day. The theory of evolution teaches us that
in two thousand years the Solon type must have improved, and that the
Solon that we see in the latter-day armchair of State must be a far, far
better thing than anything that obtained in Ancient Greece. Possibly, the
world having no use at all for Solons, the type is extinct. Be that as it
may, I am more than ever puzzled since I have studied the records of What
the Archon Did. If the world had got so far in the question of
imprisonment for debt five hundred years before Christ, why are we where
we are now nineteen hundred years since the Master set before us the true
doctrine of forgiveness of debts?
The Roman laws against the debtor upon which we have ultimately modelled
our own were equally harsh and would nearly satisfy the moneylender or
tally-man of any age. Upon notice, a debtor had thirty days in which to
discharge his debt. If he did not do so his creditor carried him off in
chains. Note, however, that he was not a slave, but his creditor had to
keep him in chains for another sixty days, during which time he had to
bring the debtor out on three successive market days to give his friends
an opportunity of paying up and releasing him. The creditor had also to
provide the debtor with a pound of bread a day. In these socialist days we
take that burden off the creditor's shoulder and a generous State feeds
the imprisoned debtor at the cost of the community. On the third market
day, if the debtor's friends were still backward in coming forward, the
debtor was killed and thrown into the Tiber, or his body was divided among
his creditors, which was the only dividend they received. If there was any
market for him he was sold into slavery. It seems that in the very early
days of Ancient Rome each creditor had a right to carve his pound of flesh
from off the debtor. Portia's point against Shylock:
... nor cut thou less, nor more,
But just a pound of flesh:...
was foreseen and provided for in the drafting of the Twelve Tables. It is
enacted in the Third Table: "After the third market day the creditors may
cut their several portions of his body: and any one that cuts more or less
than his just share shall be guiltless." Unless, therefore, the laws of
Venice amended or repealed the Twelve Tables, Shylock's case seems to have
been wrongly decided. What is at least curious is that the ancient idea of
debtor and creditor law embodied in those ancient statutes should be the
foundation of one of the most popular plays in the English language.
Some good people have found a difficulty in understanding Shylock's
outlook on life and cannot comprehend why a creditor should enjoy killing
a debtor. But, after all, it is equally strange why a creditor should
take pleasure in imprisoning a debtor. Yet to-day thousands of debtors go
to prison because they have not means to pay their creditors. The
difference between killing and imprisoning a debtor is a difference in
degree only. The principle is the same. The object of the creditor is,
perhaps, in the first place, to get repaid his debt; when he finds this is
impossible the death or imprisonment of the debtor merely satisfies his
desire for revenge. The ancient Romans were, in one way, a more practical
people than ourselves, for they threw the costs of this revenge direct
upon the creditor, whereas we throw it upon the taxpayer. If this
particular impost were made upon me in any direct manner it would almost
persuade me to be a passive resister.
I am glad, however, to remind you that in historical times at all events
the Romans did not carry out the law of the Twelve Tables to its uttermost
cruelty. The popular way of dealing with a debtor seems to have been to
sell him into slavery and then to credit him in your ledger with the price
he fetched--less the out of pockets--much as we do to-day when we issue
execution against chattels. In later years the slavery of debtors was
abolished and imprisonment much like our own was substituted, but the
Romans never had a lawgiver as wise and powerful as Solon to get rid of
imprisonment for debt altogether. And the Roman imprisonment for debt in
some shape or other runs through the social systems of the Middle Ages,
being harsh in one place and less cruel in another, and mitigated at one
date and aggravated at another. Always we find a feeling among the more
thoughtful of mankind that it is in itself a harsh and cruel system and a
desire among at least a few to help the victims of it in their distress.
Fynes Moryson, who was in Rome in 1594, tells us of a practice which then
prevailed in the Pope's State which might be introduced into Protestant
England to-day in a lively belief that it would be in accordance with the
tenets of the Christian faith and a certain hope that it would relieve
many a poor wretch in misery and despair. "If," he writes, "a man be cast
into prison for debt, the judges after the manner visiting frequently
those prisons, finding him to be poor, will impose upon the creditor a
mitigation of the debt, or time of forbearance, as they judge the equity
of the case to require, or if by good witnesses they find the party so
poor as really he hath not wherewith to pay his debt they will accept a
release or assignment of his goods to the creditor and whether he consent
or no will free the debtor's body out of prison."
At all periods of time we find the same uneasiness in the minds of rulers
and governors about keeping a poor man in prison for debt when he cannot
pay. The governors of English gaols will tell you that 90 per cent. of the
debtors lying in prison to-day for civil debt, rates, maintenance or
bastardy orders and small fines are too poor to pay. Yet here in England
our legislators cannot even get as far as the Papal State of the sixteenth
century in an exercise of charity to the poor and distressed. Pending the
abolition of imprisonment for debt, a Home Office visitation with power to
release the really unfortunate on the lines of the practical experiment
which Fynes Moryson wrote home about three hundred years ago would be
something to be going on with.
This, however, is a matter which is concerned with methods of reform. But,
before we deal with amendments of the law, it is necessary to trace
clearly and accurately the evolution of imprisonment for debt in England,
in order that we may understand how and why it exists to-day as a law that
can only be put in force against the poor.
CHAPTER III
OF IMPRISONMENT FOR DEBT IN ENGLAND
Oh let me pierce the secret shade
Where dwells the venerable maid!
There humbly mark, with reverend awe,
The guardian of Britannia's law;
Unfold with joy her sacred page,
The united boast of many an age;
Where mixed, yet uniform, appears
The wisdom of a thousand years.
SIR WILLIAM BLACKSTONE:
"The Lawyer's Farewell to his Muse."
I am honestly sorry to have to inflict a chapter of legal history upon
anyone, but for the life of me I do not see how the imprisonment for debt
of to-day can be intelligently appreciated until one knows something of
its lineage. To begin with, it may be news to some folk to learn that in
the merry days of Henry III. there was no imprisonment for debt at all. If
Godfrey the garlic seller or Hogg the needier owed Rose of the small shop
a tally for weekly purchases and would not pay, Rose, poor woman, could
not get an order to send them to gaol. Yet there is no evidence that trade
was thereby injured, or that there was any difficulty in Rose regulating
her credit-giving, or in Godfrey and Hogg and the rest obtaining as much
credit as they deserved. The first thing to remember is that England at
one period had no use for imprisonment for debt.
It occurs to me that, if I can persuade the man in the street to
understand how imprisonment for debt began and continued until it became a
great public scandal, and show how in the last hundred years little by
little its evil influence and extent have been abated with good results,
we shall be making great strides towards the restoration of that liberty
in England which in the matter of debt was the citizen's privilege in the
days of Henry III.
But the reason for the absence of imprisonment for debt in these early
feudal days is not so satisfactory to modern ears as one could wish. Lord
Chief Baron Gilbert, that crisp and accurate lawyer of the eighteenth
century, puts it very clearly when he says: "But there was no Capias for
the Debt or Damages of a Common Person, because the party having trusted
him only with personal Things his remedy was only on the personal Estate,
and the King had the Interest in the Body of his subject; and the Lord in
his _Feudatory_ or _Vassal_ to be called out to War or to labour for him;
and therefore none but the King could imprison him."
And this seems clear, that the reason a creditor could not imprison a
debtor was because in those days a debtor had only a limited interest in
his own body. The fighting part of his body belonged to the king, the
labouring part of his body belonged to his lord, and the king and the lord
were not going to have their rights and property in his body interfered
with because the subject and vassal had been foolish enough to run into
debt with another subject and vassal who wanted his money.
You will, indeed, find that the whole history of the law and the poor
seems to be a long struggling of the poor out of slavery and serfdom where
they had a certain guaranteed amount of food and protection from their
masters, similar in nature to that given to the ox or the ass or anything
that was his, into a state of freedom, so-called, in which they had given
up their rights to food and protection without getting any certain rights
of wages or the equivalent of wages in return. We are in the middle of
adjusting these things to-day, and the story of imprisonment for debt, and
why it is retained at the present only for poor people, is a page in the
curious English history of social progress.
As long as the debtor was a vassal having certain duties to perform for
the lord of the manor his lordship thought him as much worth preserving as
the game or venison within the curtilage of his park. It was for this
reason you could not take his body in execution. As you may know, when you
obtain a judgment in a court of law the next thing to do is to proceed to
execution; that is to say, the judge having given you judgment a writ is
granted to you whereby you get the sheriff to take your part and seize for
you either the goods or body of your opponent. The history of these
ancient writs is full of amusing folklore for those who love such things,
and we still call them by their old dog-Latin names, not for any
scientific purpose, but for much the same reason that the doctors write
their prescriptions in hieroglyphics and priests mumble Latin or
English--but always mumble--in a cathedral. It is the essence of a
profession that it should be mysterious and incomprehensible, otherwise
the common herd would not respect it and pay its fees.
And, prior to Henry III., if you got a judgment against your neighbour for
money owing by him to you, your remedies of execution were these. By a
writ of _fieri facias_ the sheriff could be commanded to seize the goods
and chattels of the debtor in satisfaction of the debt. This dear old
writ, the _fieri facias_, affectionately alluded to as the _fi. fa._ by
attorneys, bailiffs and others who have the handling of the fellow, is
still with us. I agree that without him the delivery of judgments in
courts of law would be mainly of academic and rhetorical interest. For as
Gilbert--not William Schwenck, but Sir Geoffrey the Chief Baron--puts it,
if a party trusts a man with personal things, then his remedy should be
against the personal things of the debtor, and this seems a principle of
common law and common sense as just as it is homeopathic. As our
latter-day Gilbert would have put it, "the punishment fits the crime."
But when you come to our other writ, the _capias satisfaciendum_, or "_ca.
sa._" as it is written in the absurd legal shorthand of the day, or "body
warrant" as it is still termed with brutal accuracy in Lancashire, then
you will find that in old days different considerations prevailed. You
were not allowed to seize a man's body for debt, but only his goods. And I
am glad to find myself setting forth high Tory doctrine and asking my
fellow citizens to return to the earliest common law of the land, for this
seems clear that originally, unless the action was for trespass _vi et
armis_, which was in the nature of a criminal matter, there was no remedy
against the body of the defendant. The _ca. sa._ whereby the sheriff was
ordered to seize the body of the defendant in execution could not issue at
the instance of a successful plaintiff at common law. In other words there
was no imprisonment for debt.
Our forefathers recognised what we seem to have partially lost sight of,
that as credit could only be given commercially to a man with goods, it
was fair and just that his goods should be seized if he did not carry out
his contract. But for reasons of their own--no longer sound as reasons
to-day, it is true--they refused to allow a man to mortgage his body for
goods. Body warrants only issued against criminals or in actions of a
semi-criminal character. It will be reassuring to those conservative minds
who fear the abolition of imprisonment for debt to remember that there was
a time in England when it did not exist, and that if we abolish it to-day
we are working on old-fashioned and constitutional lines. Imprisonment for
debt has not the sanction of antiquity, and a desire to sweep it away must
not be put down to the wild and wicked desires of a political futurist
architect, but rather to the pious hopes of one who is in deep sympathy
with the best features of the Norman and Early English social institutions
of his native land.
To tell the long story of the statutory evolution of imprisonment for
debt from the Statute of Marlbridge, 52 Henry III. c. 23, to the Act for
the Abolition of Imprisonment for Debt--so-called--of 1869, would be out
of place here. It is enough to know that little by little the principle of
the right of one man to seize the body of another in an execution for debt
became recognised by statutes and by custom until the wrongs it caused
reached such a scandalous pitch in the eighteenth century that some reform
of it became inevitable.
The more modern contests over its partial mitigation from time to time
throw a direct light on the differences of opinion upon the matter of
to-day. It will be seen that there have always been two schools of thought
among politicians. One school was clear, that to tamper with imprisonment
meant ruin to trade; the other held--what I take to be the true
gospel--that a man ought not to be allowed to obtain credit on the
security of his body.
Until the end of the eighteenth century the harshness and cruelty of
imprisonment for debt received little attention. The history of the
debtors' prisons, the Fleet, the King's Bench, the Marshalsea and the City
Compters, are pages of the story of our law that no one can read to-day
without shame. Yet the Howards and Frys who called attention to the facts
met with just as little encouragement and attention from the rulers of the
country as anyone does to-day who desires to put the coping stones on the
completed work, the foundations of which were laid by these great
reformers.
The extraordinary results that took place through imprisonment for debt
as it existed in the eighteenth century are surely beyond parallel in any
legal system. The plays and fictions of the time are full of instances.
You remember when Roderick Random finds himself in the Marshalsea he meets
with his old friend Jackson and asks him about his _amour_ with the lady
of fortune: "You must know," replies Jackson, "that a few days after our
adventure I found means to be married to that same fine lady you speak of
and passed the night with her at her lodgings, so much to her
satisfaction, that early in the morning, after a good deal of snivelling
and sobbing, she owned that far from being an heiress of great fortune she
was no other than a common woman of the town who had decoyed me into
matrimony in order to enjoy the privilege of a _femme couverte_, and that
unless I made my escape immediately I should be arrested for a debt of her
contracting by bailiffs employed and instructed for that purpose." Upon
hearing this poor Jackson escapes and serves for a few months as surgeon
of a sloop, but, on his return, is arrested for a debt of his wife's and
comes to live at the Marshalsea on half pay.
Nor is there anything wildly improbable in the story. Smollett had been in
a debtor's prison himself, and very likely had heard the story at first
hand, for many equally extraordinary stories in real life are well
authenticated.
There was the strange case of the lady who married a man under sentence of
death to get rid of her debts, and was greatly upset when her husband was
respited and sent to the colonies. But perhaps one of the most curious
stories is that of the dear old blind spinster of Clerkenwell, with a
fortune of a thousand pounds, who took a deep interest in the career of an
industrious shoemaker's apprentice and made him presents of clothes and a
watch and lent him ten pounds. When he was out of his articles and was
about to go home to Leicestershire and settle down there, he was arrested
for the loan and the attorney's bill of costs and the "garnish" at the
lock-up to which he was taken. After a few days the kind-hearted lady
visited him and offered him three alternatives. He might pay the money; go
to the debtor's prison for the rest of his life; or marry her. He chose
the last alternative and was kept in the sponging house until his wedding
day.
These stories are but a sample of the iniquities that were going on in
that day, and yet then, as now, the feeling of legislators and business
men seems to have been that it was dangerous to trade and business to
sweep this horrible system away, so blind are people to the wrongs they
see every day, so dull are ears to cries of pain and distress that are
continuous and never cease. It would seem as though the conscience of
mankind can only be startled into action by some catastrophe, some tragedy
obviously brought about by bad government and bad laws, and not until then
will it translate its knowledge of evil into demand for reform.
The tragedies of imprisonment for debt occurred, but they took place
behind closed doors and the world only heard of them by slow degrees. At
length, however, the constant repetition of the miseries of the poor
debtors who languished in prison, wasting their lives and eating out their
hearts in despair, began slowly to convince the man in the street that
there really was something wrong with the world and that the cup of human
misery of some of their fellow creatures was slopping over into the saucer
of despair. Timid reformers began to think something might be done. The
arguments then, as now, were all one way, but then, as now, there was no
one to listen to them. Good men had raised their voices to point out the
wrong-doing that was going on, and the unnecessary wretchedness that was
being caused, but nothing much came of it. There were a few desultory and
ineffective movements towards discharging poor debtors, but the matter did
not greatly interest mankind, and there seemed to the eighteenth century
mind no very clear reason why a debtor once in prison for debt should ever
be released. To-day, in the same way, it is difficult to persuade the
average citizen that there is any injustice in a debtor being sent to
prison for debt. The attitude of mind about the thing is not greatly
altered, though happily the amount of injustice and wrong-doing has been
lessened.
It was not, indeed, until the beginning of the reign of Queen Victoria, a
time of great hope for the poor and distressed, a period which has not
inaptly been called "the springtime of social reform," that any practical
movement was made. I myself keep March 31st as the birthday of the
movement for the abolition of imprisonment for debt, but anyway it is a
red-letter day in the history of English literature and worthy of great
honour. For on that day, in the year 1836, the first number of "Pickwick,"
appeared and there is no doubt that the account of the Fleet prison in
that volume has made it the popular text-book of legal reform in these
matters. If "Pickwick" in 1836 was not the _causa causans_ of Lord
Cottenham's Bill to amend the law of insolvency which was introduced in
December, 1837, there is no doubt that Dickens' stories of the cruelty of
imprisonment for debt supplied the motive power necessary to pass it by
rousing the public conscience to insist upon something being done.
The point of particular reform aimed at by the Bill was to abolish what
was called arrest on mesne process. It is an absurd term, and it was a
still more absurd thing. The wonder is that it had survived as long as it
did. Mesne process, translated into English, means middle process, and the
idea was to lock a defendant up in the middle of the trial and keep him
there in case it turned out at the end of the proceedings that he owed the
money. It was as popular with the sharks of the eighteenth century as the
present imprisonment is with the moneylenders and tally-men of to-day. Any
person who would make an affidavit that another owed him twenty pounds or
more could lock him up pending the trial and, unless the victim could find
the money and pay it into Court, he remained in the sponging house until
the trial came on. Harry Warrington was served so, if you remember. Two
gentlemen came from over the way, "one of them takes a strip of paper out
of his pocket and, putting his hand upon Mr. Warrington's shoulder,
declares him his prisoner. A hackney coach is called and poor Harry goes
to sleep in Chancery Lane." Certainly Harry owed the money and had been
reckless and extravagant enough, but even then the method of arrest
strikes us to-day as a little high-handed. Nor was it always made use of
with honesty. To bold rascals it was a very perfect machine for the
wickedest blackmail. An affidavit of debt--and eighteenth century
affidavits were no nearer the truth than those of the present century--was
all that was required, and if in the end the affidavit was found to be
false, the only remedy was to prosecute the swearer of it--if you could
find him.
A case that Lord Denman mentioned in the debates in 1837 created a good
deal of uneasiness in the public mind. A certain Portuguese nobleman, the
Duke de Cadaval, on landing at Falmouth, or when he was residing at
Plymouth, was arrested on a pretended debt, thrown into prison, and
obliged to pay a large sum of money to procure his release. He afterwards
recovered in an action for malicious arrest heavy damages, but he never
received a penny of them, nor is there any record that the false witnesses
were punished for perjury. There are many stories of this kind, and it was
an obvious result of the system of arrest on mesne process. One would have
thought that there would have been no difficulty about abolishing a legal
machinery that brought about such injustice, but, in truth and fact, it
was quite otherwise. Indeed, the people who wanted to abolish the
excellent and business-like system were regarded as very pestilent and
turbulent busy-bodies by the average citizen.
Another incident of imprisonment for debt at this date was that if a
creditor preferred to issue a _ca. sa._ to a _fi. fa._ and took the body
of the debtor in preference to the property of the debtor, he thereby
discharged the debtor. If, therefore, the debtor preferred imprisonment to
paying his debts, the law afforded the creditor no other remedy. There
were instances of debtors remaining in prison for over twenty years well
able to pay their debts, but preferring to live in luxury within the rules
of the prison. _Re Pickwick_ is perhaps the popular leading case on this
point. But whilst we remember with pleasure how the law enabled our dear
friend to outwit for a time those wily attorneys Dodson and Fogg, do not
let us forget the terrible sights he saw in the Fleet.
The Chancery prisoner, the fortunate legatee whose lawyers had had the
thousand pounds legacy, and who was in the Fleet, mending shoes for twenty
years because the loom of the law had woven a shroud of costs round him
and buried him in prison--he was no fiction. His heart was broken when his
child died and he could not kiss him in his coffin. There he remained
living a solitary lingering death, lonely amid the noise and riot of the
Fleet, until God gave him his discharge. This and many another case was
before My Lords and known to the intelligent Commons when the question of
the abolition of arrest on mesne process came up for discussion in 1837.
It is to Lord Cottenham, as I have said, that we owe the statute which,
to use Mr. Atlay's phrase, "abolished the bane of Mr. Micawber's
existence, imprisonment for debt on mesne process." Nor must it be thought
that it was done without a struggle. Lord Lyndhurst said, and no doubt
truly, that, judging from the petitions, he should be within the truth in
saying that the Bill was very unpopular. The petitions were at least ten
to one against the Bill. There was no more enthusiasm about mitigating
imprisonment for debt then than there is to-day. The history of these
things is always the same; the traders objected to the abolition of
imprisonment for debt, the newspaper proprietors strenuously opposed the
reduction of the Stamp Acts, the doctors fought against national
insurance. Yet, when the horrible thing is done, we find them smugly
prospering on the reform.
Lord Brougham, who from the very first had always held instinctively the
true faith in these matters, pointed out to a reluctant House how credit
was imprudently given to the real injury of the customer who is induced to
buy what he cannot pay for, and to the injury of those who do pay what
they do owe, but who pay the dearer in proportion to the bad debts which
the tradesman is led to let others contract with him. Further, he
emphasised the wrong done by clothing an insolvent person with an
appearance of credit by lending him more goods which serve as a bait or
decoy to others that have not yet trusted him. He laid down the principle
that debt should never be treated as a crime and still less as a crime to
be punished at the sole will and pleasure of the creditor, and eloquently
called upon the peers to wipe out this foul stain from our civil code.
Arrest on mesne process was abolished, not ungrudgingly it is true, but it
came to an end, and a commission was set up in 1839 to inquire and report
upon the whole system of imprisonment for debt. This commission ultimately
reported in favour of abolition. In 1844 another Bill was introduced to
distinguish between cases where it could be shown that the debtor was an
innocent fool and not a culpable contumacious defrauder. It was not of
much avail as a social reform, but may be fairly described, perhaps, as a
worthy effort. The brightest reading in its history for us to-day is the
debate in which Lord Brougham, with savage eloquence, rubs it in--the
modern slang expresses Brougham's method so accurately--and jeers at the
opponents of imprisonment for debt now that all their Cassandra prophecies
over the abolition of imprisonment by mesne process have proved themselves
to be worthless. Abolition of this system had not diminished credit, and
had not raised any difficulty in citizens obtaining credit. Then, as now,
these were the trade arguments against reform solemnly used by business
men, officials and lawyers, and though, on each occasion when the reform
has taken place, they have been found to be the hollowest nonsense, yet
they are repeated to the reformers of to-day with the same pompous
effrontery with which they were offered to Lord Brougham.
We now come to 1869, in which year the present state of the law was
created, and it is this law which seems to me so unjust to wage earners
and poor people who are in debt, placing them as it does in conjunction
with the Bankruptcy Laws in such a wholly inferior position to that of the
well-to-do citizens. In order to understand the exact legal position it
is, I fear, necessary to deal with the matter in some little detail.
The intention of the Legislature at the time seems to have been right
enough. It was desired, no doubt, that a fraudulent debtor should be
punished and that an honest debtor should not. If a means could be
invented to carry out this principle no one would utter a word against it.
A fraudulent debtor is, I take it, a man who, having ample means over and
above the reasonable necessities of himself and his family, conceals them
or places them in fictitious names and then defrauds his debtor and
refuses to pay him.
I should be in favour of more stringent measures being taken against the
fraudulent debtor, for one meets him every day, well-to-do and smiling,
with a bill of sale on his furniture and everything in his wife's name.
But he is the curled darling of the law. He makes use of the law to
protect himself and his frauds, and the Debtors Act, which was intended to
abolish imprisonment for debt, has no terrors for him, whilst under its
provisions hundreds of weekly wage earners are imprisoned.
As Sir George Jessel said, the real intention of the Debtors Act, 1869,
was to abolish imprisonment for debt for honest debtors and to retain the
right of judges to punish fraudulent debtors. Many of the sections of the
Act are framed, and to some extent assist, in the excellent aim of making
it hot for the naughty and wicked debtor who has cheated or defrauded his
creditors. Why is such a person punished? asks the Master of the Rolls. I
give the answer in his own words. "Simply because he is a dishonest man.
He need not perhaps be called a thief in so many words, but he is a man
who takes or keeps money belonging to other people, and he is punished
accordingly." Instances of such are defaulting trustees and similar
misdemeanants, and, so far as the Act provides for their punishment, we
have no quarrel with it.
Now no one would contend that the system of imprisonment for debt as
carried out in the County Courts is a system directed in the main against
dishonest men. Improvident, careless, foolish and childlike these poor
defendants in the County Court may fairly be described; but if a day of
judgment audit could be carried out, and a balance struck on the item of
"honesty" as between the working-men debtors and the class of traders who
give them credit, I make little doubt which class, as a class, would show
the better figures. No, we do not imprison in the County Court for
dishonesty _per se_; dishonesty may or may not be a feature of any
particular case, but it is not an essential.
The order for imprisonment is made under section 5 of the Debtors Act,
1869. That is the tally-man's charter. I am sorry to bore anyone with all
these sections and statutes, but there is such a lot of inaccuracy written
and talked about the matter that it is best to set down the actual
enactment. We must remember then that the Act, being an Act for the
abolition of imprisonment for debt, had begun by enacting in the fourth
section that "with the exceptions hereinafter mentioned no person shall be
arrested or imprisoned for making default in payment of a sum of money."
These last words state quite clearly the true principle of what the law
ought to be. Unfortunately for the poor the special exception made for
them has only too truly proved the rule.
The opponents of abolition were but too successful in their endeavours to
make inroads upon the thoroughness of the proposed reform, and one of the
exceptions was called "a saving power of committal for small debts." It
might have been better described perhaps "as a saving power to imprison
poor debtors." This is the famous section 5 of the Debtors Act, 1869, over
which so much controversy has since arisen, on the working of which two
important commissions have sat and reported, and under which we may
proudly claim to be one of the last civilised countries that clings to a
system of imprisonment for debt.
It is necessary to set out the section at some length, for it has a
googlie element about it and is not so innocent as it appears on the
surface. It first sets out "that any Court may commit to prison for six
weeks any person who makes default in the payment of a debt or instalment
due in pursuance of a judgment." That, of course, is plain sailing
imprisonment for debt. Then, however, follows the sub-section--I again
apologise for troubling you with all this, but it is really a good
citizen's duty to understand it--which causes all the worry. It is enacted
in sub-section (2) "that such jurisdiction shall only be exercised where
it is proved to the satisfaction of the Court that the person making
default either has _or has had_ since the date of the order or judgment
the means to pay the sum in respect of which he has made default and has
refused or neglected or refuses or neglects to pay the same."
It is the words that I have printed in italics that hit the poor man and
the weekly wage earner, for of course it is generally provable that,
although he has no present means to pay a debt, he _has had_ since the
judgment means to pay which he has spent on the maintenance of his family,
or, if you will, on beer or tobacco, or picture palaces, or, in a word, as
good solvent middle class people would say--improvidently.
The further matters enacted are all sensible enough, granted you approve
of the main principle of imprisonment for small debtors. They deal with
proof of means of the person making default, allowing such proof to be
given in such manner as the Court thinks just, and for these purposes the
debtor and any witnesses may be summoned and examined on oath according to
the prescribed rules.
The other material points of the section are that a County Court judge
must exercise his jurisdiction in open Court, he may order the debt to be
paid by instalments, he may also make continuous committals on each
unpaid instalment, he may vary and rescind the order, and the imprisonment
when suffered does not distinguish or discharge the debt or other remedies
of the creditor. The debtor can take his release in payment of debt and
costs.
Anyone who studies this Act of 1869 and comes to the conclusion that this
system is anything less than imprisonment for debt, and not imprisonment
for fraud, must, I think, be driven to argue that the men who drafted the
Act called the Act an Act for the abolition of imprisonment for debt,
called section 5 a saving clause for continuing imprisonment for small
debtors in certain cases, and did not understand their business. As a
matter of fact they knew their business very well indeed, and they carried
it out faithfully and well.
What happened undoubtedly was this: Parliament as a whole was out to
abolish imprisonment for debt. There were a lot of old-fashioned folk then
as now, who wanted to retain it. Compromises were made. It was agreed that
there should be abolition, it was also agreed that there should be
exceptions. The exceptions readily granted were cases of fraudulent
trusteeship and the like. This was not enough for the old gang, so the
promoters of the reform threw in poor persons owing small debts. The poor
had as few friends in Parliament as the fraudulent and they were huddled
together into the same bundle of exceptions as a sop to the opponents of
the Bill. When folk describe our present system in the County Court as
anything other than imprisonment for debt, a legitimate offspring of its
noble Norman ancestor _capias ad satisfaciendum_, they do it in ignorance
of the legal and political history of the Debtors Act, 1869.
I should like to have set out much of the debate in the House of Commons
on the second reading of this Bill. Sir Robert Collier, the
Attorney-General, openly expressed his regret that imprisonment for debt
was going to be retained in the County Courts, and several members spoke
wisely about the hardships then inflicted on the poor and the
undesirability of continuing them. But the following extract from a speech
of Mr. McMahon shows that no one at that time was under any delusion about
what was going to be done. "When," he said, "arrest on mesne process was
abolished shortly after the passing of the Reform Bill it was then said
that credit would be disturbed, and that traders would not be able to
carry on their business. But these forebodings were purely imaginary, and
in the same way he believed no evil would attend the good that must
undoubtedly result from the final abolition of imprisonment. If, however,
they allowed the rich man to escape under the bankruptcy system they ought
not to admit the poor man to be liable to imprisonment, for by so doing
they would certainly be open to the charge of having one law for the man
in broadcloth and another for the man in corduroys."
Here the warning is clearly given by a man on the spot, that what they
were about to do was to set up a system unfair to the poor, and there was
really no doubt in the minds of any of the legislators of the day that
they were deliberately retaining imprisonment for debt for the poor. I
want to insist on this point because one of the stumbling blocks in the
way of reform to-day is the strange belief, fostered by the tally-man and
his friends, that in some mysterious way imprisonment for debt has really
been already abolished and that the working classes really go to prison
for contempt of court or some other reason. There is no truth in this
whatever.
The Attorney-General who introduced the Debtors Act, 1869, may surely be
credited with understanding what it was intended to do. He knew well
enough that his Bill was going to abolish imprisonment for debt for the
rich and retain it for the poor. He pointed out that he was making
bankruptcy cheaper and more stringent. It would be obviously absurd, he
said, to make a day labourer a bankrupt, and that brought him to the very
difficult question of County Court jurisdiction. At that time the County
Court had a jurisdiction to punish for fraud as an incident of debt and
also to imprison for debt. He proposed to take away the jurisdiction to
imprison for fraud and to leave fraudulent debtors, both rich and poor, to
the Criminal Courts. "But then," he continued, "came the other question of
County Court imprisonment where a man was able to pay his debt, but would
not do so. He did not regard that imprisonment as a mere punishment for a
past offence _but it was a process of imprisonment for the purpose of
compelling the payment of a debt_, and it was a process very analogous to
the principle of the Bankruptcy Law." He came to the conclusion, after
further argument, "that this power of imprisonment in the one case he had
mentioned must be retained."
When an Attorney-General in 1869 brings in a Bill to abolish imprisonment
for debt and deliberately tells us that he retains one class of
imprisonment for debt, it is inconceivable why people to-day should strive
to make out that the system we are working is not imprisonment for debt,
but something else. Unless it be that the advocates of imprisonment for
debt know in their heads that it is an evil, out-of-date system, and they
have an instinct that it smells more sweetly under some other name.
From 1869 to the present there has been no further reform. Many hope that
there never will be any, but for my part I have no doubt it will come
along, not in my time, perhaps, but whenever the right moment may be. From
1869 until to-day over three hundred thousand English citizens have been
actually imprisoned who have not been guilty of any crime whatsoever. They
have been imprisoned mainly for poverty or, if you will, for
improvidence--that blessed word that so insidiously describes in the poor
that failure in economic asceticism, that lack of cold self-denial of
luxury and extravagance, that absence of patient thrift and simplicity of
life--characteristic features which are never wanting in the beautiful
lives of those social classes above them that the poor must learn to look
up to and to imitate.
CHAPTER IV
HOW THE MACHINE WORKS
Roll on, thou ball, roll on!
Through seas of inky air
Roll on!
It's true I've got no shirts to wear,
It's true my butcher's bill is due;
It's true my prospects all look blue--
But don't let that unsettle you!
Never _you_ mind!
Roll on!
W. S. GILBERT: "To the Terrestrial Globe."
I fear the earth will do a lot of rolling on before we abolish
imprisonment for debt, but very likely I am exhibiting a somewhat senile
haste in the matter which is unbecoming. To me it appears strange that,
whilst in every other science the professors of it are making earnest
efforts to place the result of their studies to the credit of mankind, the
law seems more incapable than theology of assimilating new ideas and
getting into step with the march of time. I have no hesitation in saying
that the County Court, as a debt-collecting machine, is a one-horse wooden
antiquity only fit for the scrap heap. If you went down to Euston and
found them coupling up Puffing Billy to the Scotch Express and the engine
driver dissolved in tears, you would understand the kind of hopeless
feeling that oppresses me every morning when I sit down to try a hundred
judgment summonses.
For how can they be said to be tried in the sense in which an Englishman
is supposed to be tried before he is deprived of his liberty. There is
very little evidence, often the defendant makes no appearance and does not
even send his wife to tell the tale for him. He cannot afford to leave his
work and she ought not to be asked to leave her babies. The word,
therefore, of the plaintiff, or, more probably, the debt collector--and
many of these men, making it their business and dealing daily with the
Court, are far more accurate and careful than the plaintiffs
themselves--this is all you have to go by. The law, as I told you, left it
entirely to the taste and fancy of the judges what evidence they should
receive, and though nowadays all judges honestly endeavour, I think, not
to carry out the law to the full extent of its cruelty, yet naturally
different men hold different views of the rights and liabilities of the
poor, and so there is no sort of equality in the treatment they receive in
different districts.
Thus we have in the working of imprisonment for debt everything that is
undesirable. The liberty of the subject is at stake, but there is no right
of trial by jury, such as the fraudulent bankrupt or any other
misdemeanant is entitled to; the evidence on which the debtor is convicted
and sent to gaol is any evidence that the judge thinks good enough, and
within the limit of six weeks the imprisonment is anything that each
particular judge determines. There is, of course, no appeal, and when the
prisoner comes out of gaol he still owes the debt, though he cannot be
imprisoned again for the same debt or instalment. The multiplicity of
these proceedings is appalling. There are over a million small debt
summonses issued every year and nearly four hundred thousand judgment
summonses, of which about a quarter of a million are heard. What a waste
of time and energy it all means. Judges, registrars, solicitors, bailiffs,
debt collectors, the piling up of costs and fees on to the original debt,
the dragging off to gaol of an occasional debtor _pour encourager les
autres_, the breaking up of some poor home, the blackmailing of friends
and relations very little better off than the poor debtor himself, the
squeezing of the pittance out of the bellies of the little children to
keep the father out of prison--what a picture to leave on the canvas of
our own generation for our grandchildren to scoff at.
And the business result of it! Even when the debt is paid--if it is
paid--after years of waiting and hours spent coming down to the Courts
seeing if the money is yet paid in--or 20 per cent. paid to a debt
collector to do it for you--when all is finished, would it not have been
far better if you had recognised that you had made a bad debt and stood
yourself a few shillings worth of righteousness in forgiving your debtor
his indebtedness? Certain it is that the system is useless to, and very
little used by, the respectable individual creditor. Indeed, if he tries
to use it, he stumbles into so many pitfalls and finds the procedure of it
so troublesome and uncanny that he very often fails to stay the course,
and, after a few wasted days, goes his way and leaves the debtor to go
his. The best customers of the County Court, indeed the only people to
whom the system of imprisonment for debt is of any real service, are those
traders who carry on a business which can only be carried on and made to
pay by reason of the sanction of the shadow of the gaol which is of the
essence of the contract.
The tally-men, the moneylenders, the flash jewellery touts, the sellers of
costly Bibles in series, of gramophones and other luxuries of the mean
streets, these are the knaves the State caters for. For these businesses
are based, and soundly and commercially based, on imprisonment for debt.
The game is to go forth with a lot of flash watches, persuade a workman in
a public-house or elsewhere to sign a paper that he has bought one--he
always says, silly fellow, that he thought he had it on approval--and when
he fails to pay his instalments put him in the County Court. I have known
a pigeon-flying working man earning thirty-five shillings a week buy a
watch priced eight pounds which had a second hand and a stop movement for
timing that momentarily overcame his better sense of economy. Without
imprisonment for debt it would not have paid the servant of the Evil One
to have led him into the temptation.
To these traders the County Court is of real value. They issue their
plaints in bundles, they take out judgment summonses in batches of thirty,
fifty, or a hundred at a time, they can afford to have a skilled clerk
well versed in the procedure of the Court to fill up the papers, and can
run the machine which a complacent State puts at their disposal with very
good results to themselves. I remember a firm starting in Manchester with
the sale of some sort of horse medicine--good or bad is really no matter.
The method of business was delightfully simple. The proprietor travelled
round in Herefordshire and Devonshire and persuaded the farmers to try
some of the horse medicine. A form was signed which was a contract of sale
and a promise to pay in Manchester. This gave the Manchester Court
jurisdiction to issue the summonses, which were for sums of under two
pounds. Letters came complaining that no contract had been intended, that
the stuff was worthless, etc., but no one turned up and judgment went by
default. The success of the business was its ruin. The plaintiff, tired of
filling up the forms of the Court and well knowing that none of his
customers would pay without process, actually had affidavits of his own
ready printed, and this cynical admission of the fraudulent nature of his
trade--for an honest man would not expect nearly all his customers to
refuse to accept goods ordered--led to his undoing. Inquiries were made,
one or two farmers were induced to appear and give evidence, and his
business career came to an end.
I am not, of course, saying that the County Court exists only for those
who have the courage and effrontery to make the full use of the machine as
an accessory to shady trading. But it can be demonstrated that
imprisonment for debt is the mainstay of such trades as moneylending and
credit drapery and all those low trades that make their profits by
foisting shoddy luxuries on to working men and their wives.
Some time ago I made a careful examination of some 460 judgment summonses
taken consecutively. The figures were from the Manchester Court. I found
the following were the trades represented:--
Drapers 154
General dealers 130
Jewellers 60
Grocers 35
Moneylenders 24
Doctors 10
Tailors 5
Miscellaneous traders issuing less than four summonses 42
---
460
General dealers, it must be remembered, are traders in a large or small
way of business who will sell furniture, drapery, clothes, cutlery, or
anything you like, on the instalment system. Their methods of trading are
tally-men's methods.
If this list be looked at, it will be seen that the general public make
very little use of imprisonment for debt. The substantial shopkeeper and
ratepayer is scarcely represented at all, the grocers and a few of the big
general dealers being the only people who pay rates. Some of these general
dealers it should be remembered are limited companies having numerous
agents paid by high commissions and spending large sums in advertising.
Their prices are apparently low, but the quality of their goods leaves
much to be desired. Now what worries me is, why should the State keep
Courts going for men of this class? The only creditor in that list for
whom one can have the least sympathy is the doctor, and the National
Insurance Act has now put him on a cash basis, so that in a list taken
to-day he would not appear so often. It is clear from these figures that
at a cost to the general body of taxpayers you are encouraging a bad class
of parasite traders to choke the growth of thrift among the working
classes.
For unless you make it ruinous to the creditor for the credit to be given
you will never stop it. How can a man at work hinder credit being given
through the agency of the wife when the law permits it and caters for it
by providing the trader who lives by it with a special debt-collecting
machine without which this class of trader were impossible. I have known
cases where a working man's wife was dealing with nineteen different
Scotch drapers. What wages can satisfy such an orgy of drapery as that?
How often, too, do men and women buy watches to pawn them for drink or a
day at the races? What is this but an evil and ruinous form of
moneylending? And what makes these things possible among our poor people?
The law siding with the knave against the fool; the saving clause for the
imprisonment of poor debtors in the Act of 1869.
And whereas I shall show you that bankruptcy and divorce are the luxuries
of the rich, so it is only fair, I think, to allow that imprisonment for
debt is a distinctive privilege that the law reserves for the poor. A man
among the well-to-do classes is never imprisoned for debt; the
wage-earners are practically the only people who are subject to it.
The governor of a gaol reported a case to the last Select Commission that
sat and did nothing on the subject. A labourer was sent to his custody for
twenty-one days in default of payment of four shillings and costs, five
and ninepence in all. How can a State for very shame prate about the
extortion of moneylenders when it adds forty per cent. on to a small debt
like this for costs? The man was a widower with four children, the eldest
of whom was thirteen, and the youngest two or three years old.
When father went to prison the children went to the workhouse. That is all
part of the system. The debt was a tally-man's debt for clothes supplied
to his late wife. The governor sent it as a typical case for the
Commission to consider. "As I believe," he wrote, "that there is an idea
of having the law on imprisonment for debt amended."
The good governor was, of course, entirely mistaken about that. There is
no such idea, except in the heads of dreamers and visionaries like Elisha
and the good governor and myself, and we do not count. So his report ended
in nothing, and remains on record as a typical result of the working of
imprisonment for debt in a civilised European State in the early part of
the year of our Lord 1909.
I should like to leave the matter there as a horrible example, for so it
is, but I am a man of truth--and, in fact, the poor labourer was not kept
in gaol. It was afterwards discovered that the good governor, when he
investigated the man's case at 9.30 a.m. on the morning after his arrest,
had paid his debt for him and set him free. You remember that Elisha in a
similar case performed a miracle by filling several jars with oil. For
myself, I think the good governor's was an even nobler deed.
And when the supporters of this wretched system tell you that very few
people actually go to gaol, that is, in a sense, true. There are only
about six or seven thousand, say, who go to prison on a hundred and odd
thousand warrants issued. The number too, is decreasing. This is not,
however, to the credit of the law, but because, as I shall show, the law
is not strictly administered, and also because the public conscience, what
Lord Haldane so graphically described under the German title
_Sittlichkeit_, is against it. The habit of mind, custom, and the right
action of good citizens do not sanction enforcing debt by imprisonment. It
is only the greedy, low-down citizens who deign to use it. But the matter
is lightly regarded. A few thousand poor people doing time for trumpery
debts cannot, anyhow, be allowed to trouble the sleep of the middle-class
voter, and what am I but an untaught knave to bring their slovenly,
unhandsome corpses betwixt the wind and his nobility?
It is not only the very poor who are dragged to gaol that suffer. The
system is really one for blackmailing the poor man's friends and
relations. You ask a debtor when he comes before you on a second
instalment of a debt: "But you managed to pay the first instalment?"
"Yes," he replies; "but I had to borrow it from my brother-in-law, and I
have not paid him back yet, and he can ill-afford to lose it."
I have heard that story hundreds of times, and I know it is often a true
one. Bailiffs will tell you that on the road to gaol a prisoner will ask
to be allowed to call at various houses, looking for an Elisha, and if he
cannot find anyone to work miracles nowadays he does very often find
someone with five and ninepence and a kind heart. The poor are very good
to one another in distress, and it is better that a brother man should be
saved from gaol and restored to his home and children than that the
landlord should have his next week's rent.
In the bad old days a County Court judge openly said that he found it
better to commit to prison for six weeks rather than any shorter period,
for he found that the longer the period for which he committed people to
prison the shorter the term served, "because when they were committed for
the whole six weeks they moved heaven and earth among their friends to get
the funds to pay."
Friends of the system of imprisonment for debt call this "putting the
screw on." I think "blackmailing" is the straighter English--but any dirty
old phrase will do.
And an enormous evil, the extent and results of which can only be guessed,
is that the power to send a fellow citizen to gaol for debt, the power to
issue or not to issue a warrant for his arrest at any moment after he is
in default, places a man and his family so entirely at the mercy of his
creditor that, if the creditor be a man of bad character, terrible results
may follow. Few of us probably have not heard stories of an evil-minded
creditor using his power to seduce the virtue of a wife in her husband's
absence. There is certainly truth in such stories. Human nature is the
same in narrower lanes than Park lane. The tally-man plays on the wife's
love of finery, she gets into debt, her husband knows nothing of it. As
long as the wife is complacent nothing is heard of the debt. I do not say
such scandals are common, but I have heard enough of such stories to know
they are not fairy tales. Human nature being what it is the wonder is that
these dramas are not more often enacted. When the poor have their Divorce
Courts no doubt the evidence of them will be forthcoming, meanwhile they
rest mainly on the complaints of women of insults offered to them, which
may be fabrications, but are not always so. What a responsibility rests on
a State that maintains a system which leads to such evils.
Another and less terrible affair is the political influence wielded by a
grocer or draper over the free and independent voter whom he can put in
gaol for twenty-one days if he fails to see eye to eye with him at
election times about Disestablishment or Tariff Reform. Yet this is one of
the minor evils of the working of the Debtors Act of 1869. In a
hard-fought Lancashire election which ended in a tie there was a great
flutter and to-do caused by the arrest on the eve of the poll of some
earnest debtor of one colour by an equally earnest creditor of another
colour. It may, of course, have had nothing to do with the election--but
one never knows. Anyhow, it happened, and it was certainly not a desirable
incident from the point of view of the losing candidate.
The theoretical arguments against the abolition of imprisonment for debt
are few. The chief one is that a working man would be unable to get credit
in times of distress. Personally I do not believe it. The argument has
been used on every occasion when any legislative step has been taken to
mitigate imprisonment, for always the prophecy has been: trade will suffer
and individuals, for want of credit, will starve. On every occasion the
facts have obstinately refused to honour the prophecy after the event. I
am inclined to back history against prophecy in this matter. Credit will
be given to a working man of good character to a reasonable amount, but he
will not be tempted, as he is to-day, to mortgage his future wages on the
security of his body for every passing whim. Beer is a cash business,
betting is a cash business, picture palaces, railway trains, tram cars,
slot machines, are all run on a cash basis, yet no one will pretend that
the working man does not get as much as he wants of the goods and services
of all of them.
To-day the temptation, and very largely, I am sorry to say, the practice,
is for a workman to make the brewer and the betting man first mortgagees
of his weekly wages, whilst the draper and the grocer are too often very
ordinary shareholders indeed, obtaining an irregular dividend ranking
after the Treasury fees of the County Court. Can anyone honestly say that
it would not be better for the draper and the grocer to have their
working-class business put on a cash basis. Abolish imprisonment for debt
and the grocer and draper will demand cash in advance or, at the worst,
weekly bills. The workman will then be face to face with the immediate
question of whether he prefers to spend his wages in drink and pleasure
for himself or food and clothes for his wife and children. I have no doubt
what his answer will be. The working man is of the same nature as
ourselves. In the old days of general imprisonment for debt everyone lived
in debt. The middle classes were tempted to live beyond their means and
did so, and the Micawbers of the world were always being carried off to
prison, leaving their families in tears. Now such a state of things is
unknown. Through the great private and public stores the middle classes
buy for cash the best material at the cheapest prices and live within
their incomes. The result in their lives is matter of social history. Why
is it to be supposed that any different result will be arrived at when the
working classes are no longer tempted by a false system of credit?
"The motive of credit," says Dr. Johnson, "is the hope of advantage.
Commerce can never be at a stop while one man wants what another can
supply; and credit will never be denied whilst it is likely to be repaid
with profit. He that trusts one whom he designs to sue is criminal by the
act of trust: the cessation of such invidious traffic is to be desired
and no reason can be given why a change of the law should impair any
other. We see nation trade with nation where no payment can be compelled.
Mutual convenience produces mutual confidence and the merchants continue
to satisfy the demands of each other though they have nothing to dread but
the loss of trade."
This argument was against imprisonment for debt as the worthy Doctor saw
it in his own time, but it is just as convincing to-day about our own or
any other form of imprisonment for debt. It goes to the principle and the
root of the matter and, like many another of his best sayings, is the
knock-out blow on the subject.
Further, we have proved in our own country the beneficial effects of the
abolition of imprisonment for debt, and other countries have set us the
good example of doing away with it altogether. In Germany they have a
strict system of enforcing judgments against well-to-do debtors who seek
to cheat their creditors, a class to whom we are somewhat indulgent,
allowing many fraudulent persons to live at the expense of tradesmen by
the simple expedient of putting goods in their wife's name. But this
procedure is not available against working men, and the result is that
they have to pay their way as they go along. Dr. Schuster, an English
barrister and a Doctor of Laws of the University of Munich, explained the
German system of debt collecting to the Commission of 1908. Not only did
he make it clear that the German workman had, in the absence of
imprisonment, acquired habits of thrift that our system discourages, but
he pointed out that the insurance funds against sickness and accident, the
trades unions, the co-operative societies, and charitable relief, enabled
a German working man to tide over bad times without hanging a millstone of
debt about his neck as he has to do in this country.
In the same way in France there is no imprisonment for debt for the poor,
and so far from the French admiring our debt-collecting system in England
they think it so expensive and futile that French traders absolutely give
up all hope of recovering small debts in England and prefer to write them
off as bad. And, indeed, I have more than a suspicion that if one could
get an accurate financial history of the collection of a forty shillings'
debt in the County Court by means of imprisonment for debt, one would find
that, when Treasury fees, solicitor's costs, and creditor's time wasted
had been duly paid for, there was very little balance to credit in the
plaintiff's ledger. The more one sees of the system the more is one
convinced that it is only serviceable to those creditors who use it in a
wholesale manner to recover undesirable debts.
And though in theory I can find no serious argument against the abolition
of imprisonment for debt, yet there is one practical difficulty in
carrying it out which will have to be faced. The County Court registrars
in the small courts are unfortunately paid by fees on the number of
plaints issued. A moneylender or tally-man who cleans up his books once a
year and brings into Court a few hundred plaints automatically raises the
salary of the registrar. If this debt-collecting business is swept away,
compensation for the disturbance of these salaries that have been
calculated on this basis for many years must certainly be made. Probably
it is this real practical objection that stands between the debtor and
freedom.
I am not alone in thinking that the time is fast coming when the
inconvenience of having as the registrar of a Court a solicitor in private
practice paid by fees on the number of plaints will be so fully recognised
that the country will demand a sweeping alteration in the system. The
abolition of imprisonment for debt will give the Courts time to entertain
jurisdiction for divorce and other matters where the poor are entitled to
the same legal favour as the rich. When these reforms are made it will be
found necessary, I believe, that the registrar of each Court or group of
Courts should be a whole-time permanent official.
One other point remains to be mentioned. It is commonly said of those who
desire to abolish imprisonment for debt that they have a lower sense of
honesty than their opponents, that their views tend to encourage the man
who runs into debt and will not pay when he can. For my part I care not
how strict the law is made against dishonesty and debt resultant from
dishonesty, but let the imprisonment be imprisonment for dishonesty and
not for debt. If the debtor has acted criminally, let him be tried in a
criminal court and punished for dishonesty. In the old days a County Court
judge had powers to imprison for dishonesty, now he has only power to
imprison for debt.
It is because I believe that the abolition of imprisonment for debt will
improve the character of our citizens, as it improved the character of the
Athenian citizens more than two thousand years ago, that I have put in so
many hours overtime in the advocacy of its abolition. But whilst I would
abolish imprisonment and should like to see the English workman paying his
way like his German brother, whilst I am eager to see the poorer classes
freed from the misery that debt and extravagance brings upon them to-day,
yet no one, I hope, recognises more clearly than I do the sacred duty of a
debtor to pay an honest debt. Every penny that he can save after his first
duties of maintenance of wife and family should be devoted towards the
repayment of debts. But this is a personal obligation on a man, like
speaking the truth, or treating mankind with courtesy, and, in a word, is
only a branch of the golden rule of doing to others as you would be done
by. The breach of this obligation ought not, as it seems to me, to be
treated nowadays as more than a case of a flagrant breach of good manners,
and I would rather imprison a man who forgets to shut a railway carriage
door when he gets out on a winter night than a man who omits to pay me the
five shillings he borrowed yesterday. Both are ill-mannered fellows and
must be dealt with socially, but not, I think, by imprisonment. Debt,
except from misfortune, is really "worse form" than drunkenness. When that
is generally understood no Debtors Act will be necessary.
And the right feeling of a respectable debtor towards his creditor seems
to me stated in very apt and beautiful words by old Jeremy Taylor in one
of his "Prayers relating to Justice," in which he sets out the correct
petition to be made thus: "And next enable me to pay my duty to all my
friends, and my debts to all my creditors, that none be made miserable or
lessened in his estate by his kindness to me, or traffic with me. Forgive
me all those sins and irregular actions by which I entered into debt
further than my necessity required, or by which such necessity was brought
upon me; but let them not suffer by occasion of my sin."
And if all debtors were moved by the aspirations included in this noble
prayer, and if all creditors refused credit to poor folk unless they
believed them to be men of such a character that the ideas of the petition
were really living in their hearts, then, I think, there would be no need
of imprisonment for debt or for County Court judges either. Indeed, the
millennium would be at hand. But short of that great day, we are surely
entitled to act as though the majority of mankind preferred right action
to wrong action and not to encourage a class of debtors and creditors
whose _nexus_ is force and imprisonment rather than friendship and
goodwill. The working man should be able to say with Piers Plowman:
"Though I should die to-day, my debts are paid," and the law should help
him to that end.
CHAPTER V
WORKMEN'S COMPENSATION
Your Plea is good; but still I say, beware!
Laws are explained by Man--so have a care.
POPE: "First Satire of Second Book of Horace."
An interesting volume might be written about historical litigants and
their deeds of heroism. There was the dour Coggs who let in his friend
Bernard over the brandy cask, there was the astute Scott who never paid
Manby, the draper, for his wife's dresses, there was Wigglesworth who
built himself an everlasting name in the Hibaldstow trespass case, and the
hero of our own time, Dickson, who actually bested a railway company in
the matter of Dutch Oven, the tail-less hound--these and many others are
names enshrined in our dusty tomes of law, but if you would read them for
mere delight, has not Sir Frederick Pollock done our leading cases into
the most melodious verse.
If I were a bencher I would like to promote a pageant of these grand old
litigants in honour of their service to the English law. I think my
favourite among them all is little Priestley, the butcher's boy. You will
find his simple story in the third volume of "Meeson and Welsby." How many
know that it was at the Lincoln Summer Assizes of 1836 that the brave
butcher's boy began it, and started a train of legal thought reaching out
to the workmen's compensation system of to-day?
It was Priestley's duty to deliver meat, and one day Fowler, his master,
sent him out with such an over-load of beef and mutton that the cart broke
down and poor Priestley broke his thigh. Priestley brought an action
against his master, and the jury gave him a verdict for one hundred
pounds, but on appeal the judges would not have it, and so poor Priestley
never got it. A servant, they said, is not bound to risk his safety in the
service of his master; he may decline any service where he apprehends
injury to himself.
Lord Abinger, C.B., who presided in the Appeal Court, admitted that there
were no precedents either for or against such an action, but he was hard
put to it to explain in legal terms why the little butcher's boy, who was
certainly a brave explorer into legal hinterlands, was not to be allowed
to peg out the claim the jury had awarded him. His Lordship was driven
back to "general principles." The most learned lawyer of our day, the late
Mr. Danckwerts, once said to me when I was a very young man at the Bar and
talked glibly in consultation about the "broad grounds of truth and
justice": "If we have nothing better to rest our case on than that, God
help us in the Court of Appeal." He then proceeded to show me some cases
on the subject which my ignorance and inexperience had failed to discover.
And it was not that the great man was not a lover of truth and justice,
but that he knew that law meant, not what he and I and our client thought
to be truth and justice, but what all generations of calm thinking men
outside the dispute ought to think to be truth and justice, and that was
to be found in the decisions in similar cases which he knew as no other
lawyer ever did and about which I showed the common ignorance of my
contemporaries.
Lord Abinger, then, having no cases to guide him, played a lone hand, and
naturally played it from the point of view of the man who held the cards.
If, he said, the master be liable to the servant in an action of this kind
the principle of the liability would carry us to an alarming extent. For
instance, if a master put a servant into a damp bed or a crazy bedstead or
gave him bad meat to eat he might be liable in damages to his servant.
"The inconvenience, not to say the absurdity, of these consequences,"
afforded a sufficient argument against poor Priestley and all other
servants in like case. Priestley broke his leg and lost his case, and
legal history does not record his future career. But, though Lord Abinger
was against him, he might fairly have said in the phrase of a celebrated
and eloquent Manchester surgeon that, "This day he had lighted a candle
which would bring forth good fruit."
Several minor heroes made legal efforts to get behind this judgment, but
the judges were too many for them. It was strongly endeavoured to make
masters liable to their servants for injury caused by the negligence of a
fellow servant, but the judges declared that, when a servant enters a
service he contemplates all the ordinary risks of his work, including the
negligence of his fellow servants, and that allowance is made for this by
the master in fixing his wages. This "doctrine of common employment," as
it was called, was, of course, largely a figment of judicial imagination,
and it set back, or rather kept back, the hour of industrial reform for
more than one generation.
There never really was a law of that kind. It is what is rightly called
judge-made law. The judges said that it was "inconvenient" and "absurd"
for masters to be responsible for negligence of their servants. So, of
course, it was--to the masters and in 1836 that finished the matter. Thus
it came about that in a railway accident, if it was caused, let us say,
through the negligence of the company's signalman, every ordinary
passenger got compensation out of the company, but the engine driver, the
stoker, the guard, and their widows and orphans got nothing. Note,
however, that if the signalman had belonged to another company it would
have been quite otherwise.
In the old days when Druids sat under oak trees I daresay judge-made law
was all very well, though no doubt the personal prejudices of the Druids
were manifest in their decisions. But since the days of the Ten
Commandments it has been recognised that statute law, carefully considered
and simply expressed and written down on tables of stone or otherwise, is
a better-class article for ordering the affairs of a modern community.
No doubt the judges of 1836, being men connected with the upper middle
classes of the day, could not conceive how civilisation and social order
could exist side by side with a wicked system whereby a master had to
compensate a workman injured in his service. The thing was as
incomprehensible to the judicial mind of that date as the fifth
proposition of Euclid is to many a third-form schoolboy to-day. Some of
our judges are still in the third form in their ideas of sociology. That
is one of the dangers of judge-made law. It is bound to put the stamp of
old-fashioned class prejudice on its judgments. If the judges had been
labour leaders they would have discovered an implied contract for the
master to pay compensation with equal complacency.
The fact is that _natural justice_ is merely justice according to the
length of the judge's foot, as the common saying is. And the length of a
judicial foot will depend on the evolution of the judge. That is to say,
according as he and his ancestors have rested their feet cramped in
pinched shoes under the mahogany of the wealthy or tramped barefoot along
the highway in the freedom of poverty, so will a judge's principles of
natural justice favour the rich or the poor.
We cannot get away from the fact that our judges make a great deal of law.
The idea that a law is somewhere in existence and that the judges merely
adopt it will not, I think, hold good for a moment. It is, indeed, a legal
fiction. As a great American jurist, Professor John Chipman Gray, of
Harvard, asks: "What was the law in the time of Richard Coeur de Lion
on the liability of a telegraph company to the persons to whom a message
was sent?" The answer to this question is obvious.
When one reads from time to time of decisions of the Courts that are
upheld for a generation and finally overruled it is against the truth to
speak of a pre-existing code of laws which the judges merely administer
and expound. And the reason this is not openly acknowledged and that this
mysterious bogey of pre-existent law is worshipped in our Courts of
Justice is, as Professor Gray tells us, that there is an "unwillingness to
recognise the fact that the Courts, with the consent of the State, have
been constantly in the practice of applying in the decision of
controversies, rules which were not in existence and were therefore not
knowable by the parties when the causes of controversy occurred. It is the
unwillingness to face the certain fact that Courts are constantly making
_ex post facto_ law." This is why we maintain the fiction of the
continuous pre-existence of law.
The fear among those in authority seems to be that it would be unwise to
openly recognise the real extent of the judicial power, as it would be
unpopular and widely rebelled against, and that under the soothing fiction
of the existence of an imaginary body of law and by the constant humble
assertion of the judges, that they are not there to make laws, but only to
administer them, the man in the street is deceived for his own good. For
myself I have grave doubts whether this juggling with facts is to
anybody's benefit. If it were recognised that in giving decisions at
common law, and also in the interpretation of statutes, judges were not
only declarers of existing law but makers of new law, then it would be
possible to discuss and perhaps control or direct the law-making power of
latter-day judges which from time to time manifests itself in unbalanced
social judgments.
When the telephone was invented by Alexander Graham Bell, the
Postmaster-General of the day claimed that it was a species of telegraph
within the meaning of the Telegraph Act, 1869. Scientifically, of course,
it was no such thing. Economically and in the interests of the community
it was essential that the telephone should not be handed over to a public
department predetermined not to give it a fair chance of development. Lord
Kelvin and others pointed out what was the right policy in the matter,
and, if the affair had gone to a parliamentary commission, his words would
have had weight and a Telephone Development Act might have brought about
excellent results. In that case the future of the telephone would have
been settled by parliamentary law.
It was, in fact, settled by Mr. Justice Stephen in 1880, who declared that
the telephone was a telegraph within the meaning of the Telegraph Acts,
1863, 1869, although the telephone was not invented or contemplated in
1869. In this way its proper development in this country was arrested for
more than a generation. This is a remarkable instance of judge-made law.
Why should an individual citizen just as unversed in science and business
as the man in the street have the right to enact what should or should
not be done with an entirely new invention which was not in existence when
the statute which he pretends to apply was enacted. If the judges decided
that an aeroplane plying for hire was a hackney carriage it would in law
remain liable to all the statutory hackneydom of carriages until
Parliament otherwise ordained. Is it not becoming time when judges,
instead of making new and often reckless law, should be satisfied with
declaring that in the case before them there is no law to their knowledge,
and it is for the Legislature to consider and enact some. If this had been
Mr. Justice Stephen's decision in _The Attorney-General v. The Edison
Telephone Co. of London, Ltd._, how much better for all of us to-day!
Again, in the Workmen's Compensation Act, Parliament, it is known,
intended and desired to express many things which the judicial
interpretations of the Act have altered and amended out of all
recognition. It is scarcely true that these interpretations are all of
them due to the verbal inaccuracy of the parliamentary draftsman, because
one often finds the Court of Appeal taking one view of the meaning of the
words and the House of Lords another. The real parliamentary object of the
Act is now very difficult to understand and ascertain from the language
used in the judgments interpreting it. If law were really a science and
the interpretations of statutes by judges merely an ascertaining of
parliamentary intention, one would not expect to find such different
interpretations put upon the same words and the parliamentary intention so
openly ignored. In America grave popular discontent has arisen over the
law-making propensities of judges and their bold refusal to carry out the
intentions of the Legislature. We have no such widespread feeling in this
country, nor are we likely to have, but, all the same, if we were to
recognise the law-making power of our judges and openly discuss it and
endeavour to define and limit it, there would be less fear in the future
of a rupture between the people and the judges when futurist laws of
far-reaching social reform come to be administered by the Courts. The
lamentable failure of consistent interpretations of the Compensation Acts
is not calculated to raise the judiciary in the affections and respect of
the working classes.
This matter is really one of grave importance, for though in a sense and
up to a point, whatever a judge decrees is for the time the law--that time
may only be short. In the end the law must express the wills of those who
rule society. Professor Vinogradoff well says, in that excellent little
treatise "Common Sense in Law," we ought to "realise that law has to be
considered not merely from the point of view of its enforcement by the
Courts: it depends ultimately on _recognition_." When, then, we openly
confess that our judges are making new law every day we shall have to
impress on them--especially in social matters--that the new law they make
should be, like new parliamentary law, founded on the best aspirations of
modern hopes and thoughts of the future life of our people, rather than on
the musty creeds and traditions in which the individual human beings who
are judges have unfortunately for the most part been educated. Judge-made
law, like any other law, can only be of value to the community by popular
recognition of its wisdom. The more the judges can keep to the real
administration and interpretation of laws already existing the better for
everyone, but new points of difference and a new social order of things
naturally bring before the judges cases which can only be decided by their
making new laws. When it is freely acknowledged that this is so, not only
the community but the judges themselves will be called upon to consider
and decide the ideals and principles by which they ought to be actuated in
their capacity of lawgivers.