The law that was laid down to meet the case of the butcher and his boy

became the law under which every railway servant, every miner, every

mechanic, every navvy--the huge industrial army working under impersonal

boards and committees of limited liability companies--risked his life in

his daily work at his own expense. From 1836 to 1880 men were killed and

injured by the thousands in industrial work and there were no pensions for

the widows and orphans, no compensation for the wounded. Moreover, such a

system discouraged employers from spending money on safety devices. No

doubt many good and wise employers did a great deal to safeguard their

men; equally no doubt, servants, being but human, were often injured and

killed by their own carelessness and recklessness. The deplorable part of

it was that the law had taken up an attitude against the poor in this

matter and, as things stood, it was to no company's interest to spend

their money and decrease their dividends by safeguarding the lives and

limbs of their servants. This is still so in America, where on the

railroads one man is killed for every two hundred and five employed and

one is injured in every nine. "War is safe compared to railroading in this

country," is the comment of Mr. Gilbert Roe, the American jurist.

Of course, at all times much was done by private charity of employers and

others to help those who fell in the industrial fight.

In great colliery, shipping, or railway disasters subscriptions were made,

no doubt, just as they are to-day, but the little obscure cases that mount

up to many thousands in the annual statistics of the industrial killed and

wounded were left to chance and charity.

The Employers' Liability Act of 1880 gave certain workmen limited rights

of action in special cases. It was a prudent conservative measure brought

in by a Liberal Government, and, of course, it was predicted that it would

ruin every industry in the country. It must have cost industry a big bill

in lawyer's fees. Every case under the Act was fiercely litigated, and

might go from the County Court through two Courts of Appeal to the House

of Lords.

I do not like to write ill of the poor statute. It is not actually dead,

but moribund, and in the years gone by, when we were both young fellows I

had many a good outing at the old fellow's expense, and he did me very

well indeed. Therefore, of the Employers' Liability Act of 1880 I will say

no more than the man in the gallery did about the bride when the minister

asked, "Who giveth this woman away?" "I could, guv'nor, but I ain't going

to."

But when we come to the Workmen's Compensation Acts that is another matter

altogether. The County Court judges have never received a penny for the

extra work thrust on them by these Acts, and therefore there can be no

indelicacy or indiscretion in speaking one's thoughts plainly about the

system.

And of the idea, and to a great extent of the achievement, of Mr.

Chamberlain's scheme--for to him must the praise and honour be given for

bringing it about--one cannot speak too highly. The theory at the bottom

of it is exactly the opposite of the theory at the bottom of the judges'

decision against poor Priestley. It is best put in these memorable words

of Mr. Asquith:

"_When a person, on his own responsibility and for his own profit, sets in

motion agencies which create risks for others, he ought to be civilly

responsible for his own acts._"

That is the Magna Charta of workmen's compensation. It cannot be better

stated. And the promises and intentions of the new Act were splendid. For

Sir Matthew White Ridley said that the Act would prevent uncertainty, and

the parties would know what their rights were, and that it provided a

simple and inexpensive remedy and would prevent litigation. Mr.

Chamberlain pointed out that up to then, in 1897, only 12 per cent. of

accidents were dealt with, but that he hoped that now the other 88 per

cent. were to be brought in.

His plan was so simple. An injured man in certain trades had only to ask

for compensation, and receive it according to a fixed standard. State-paid

doctors and arbitrators were to settle the details of the man's injuries

and the amount to be paid to him. In his own words, "We wish to avoid

bringing in again under another name the old principle of contributory

negligence." A man was to receive compensation when injured in the

service, even if he himself had been negligent.

I often think if Mr. Chamberlain had had health and strength to see the

workmen's compensation business properly through he would have dealt with

the lawyers who mangled his excellent scheme much as Theseus did with

Procrustes when he met him on the banks of the Cephisus. Procrustes, you

will remember, was a robber of Attica with a quaint sense of humour and a

bedstead. If a traveller asked his hospitality he invited him to the bed,

to which he tied him. If his legs were too long he cut them off, and if

his legs were too short he pulled them out to the right length. Procrustes

had the calm judicial mind of the Court of Appeal, and within his narrow

limits knew exactly what he wanted to do and how to do it. But it was

rough on the traveller.

And it is rough on a humane, simple, wise scheme for the benefit of the

poor on leaving the hands of that great reformer and statesman, Mr.

Chamberlain, to find that it is being martyred by the Procrustes of the

law so that it may fit his narrow bed of justice. I think some of the

decisions of the Court of Appeal would have been too many for Mr.

Chamberlain, and he would have severed their connection with the workmen's

compensation business as Theseus severed Procrustes' connection with the

bedstead business.

It is certainly not putting it too strongly to say that the judicial body,

speaking generally, did not love the Workmen's Compensation Act. The idea

at the base of it that a man should compensate another outside the scope

of contract or wrong was to them out of harmony with the English law.

There never was a more honest or single-hearted judge than A. L. Smith,

who was Master of the Rolls when the earliest cases came up for decision

in the Court of Appeal. The social creed of "A. L." was something between

that of the Church catechism and the _Sporting Times_. He was beloved by

rich and poor. His ideal world was one where a good-natured aristocracy

would confer kindnesses on a well-mannered democracy, who should receive

them in a jovial and grateful spirit. There is no doubt that he

endeavoured, as did all the judges of the Court of Appeal, to rightly

interpret its provisions; there is equally no doubt that the spirit of

many of the interpretations placed upon the draftman's words did not give

effect to the intentions of Mr. Chamberlain and those who had passed the

Act. This one can only trace to the habits of mind and social creeds of

judges like "A. L." who were wholly out of touch with the beliefs and

hopes of industrial democracy. The Act of Parliament ought not to have

been sent to the Court of Appeal at all. It was not founded on any legal

principle, it was an insurance scheme that wanted business men to work

it, and, as Mr. Chamberlain had foreseen, lawyers and litigation could in

no way assist its working.

It cannot be gainsaid that the legal history of the Workmen's Compensation

Act is not a thing for lawyers to boast about. No one has a greater

respect for the Court of Appeal--and, indeed, for all my spiritual, legal,

and worldly pastors and masters--than I have. Humility towards those who

are called to any honour amongst us is my foible. I admit I have but a

poor stomach for law and that I often find the learned judgments of Appeal

Courts a little indigestible, but I remember the Irishman sampling the

twopenny racecourse pies, and piously murmur to myself, "Glory be to God,

but they're dam weighty." No one would deny the learning, subtlety and

weight of the judgments in the Court of Appeal on the Workmen's

Compensation Act, but, speaking as a common arbitrator who has to work the

Act at first hand and make it human food for shattered men and widows and

orphans, they have not tended to make my task easier, they have not

simplified and assisted the scheme as a compensation scheme, and they have

not been in harmony with the spoken intentions of the author of the

scheme.

This, I think, to be due, in the first place, no doubt to the

imperfections of the Act, in the second, to the fact that the appeals come

before learned judges who have never administered the Act in cases of

first instance and have had no practical experience of its working, and,

in the third place, to the fact that to much of the higher judicial

intellect the theory of workmen's compensation is in itself unscientific,

and therefore repugnant.

Nearly all the cases, and there are, I regret to say, many, where the

Court of Appeal has overruled the County Court, and the County Court

judgment has ultimately been restored by the House of Lords, the error has

been in the Court of Appeal striving to find a reason to hinder the

payment of compensation, rather than searching for the principle which

brought an admitted injury within the scheme that Parliament has made to

compensate the injured. After all, the Act was one for the compensation of

workmen, and every case of injury that is found not to be provided for is

a blot on the scheme.

The expense of all these appeals, is of course, a terrible burden, and to

a workman without a trade union behind him would be impossible. Great

confusion has been caused by having to work certain matters for

considerable periods under decisions of the Court of Appeal that have

afterwards had to be dealt with differently by decisions in the House of

Lords. Very likely if there were a further appeal to a House of Archangels

the Court of Appeal would be upheld. But to the injured man in the works

and the arbitrator waiting to award him his few shillings a week what

could be more pitiable and exasperating than the delay and expense that

the present method of working the Act entails? One solid reason why the

appeals in workmen's compensation cases should be removed from the Court

of Appeal is that they cannot be heard within a reasonable time. The _Law

Journal_ of June 13th, 1914, states that there are seventy-three workmen

compensation appeals waiting to be heard, of which no less than ten were

entered in 1913. It would be interesting to know how the appellants manage

in the interim.

The Act itself was difficult enough no doubt to make into a good working

scheme by those who desired to do it; the hundredweights of handsomely

published and learnedly edited reported decisions as to what it really

means have made it hopelessly impossible to comprehend and increasingly

difficult to administer.

To sum up the position of the Act to-day, with its myriad encircling

decided cases, one can only say, with the immortal Sergeant Arabin, that

it "bristles with pitfalls as an egg is full of meat."

When you have an Act of Parliament that in at least a dozen reported cases

is solemnly decided to mean _x_ in the Court of Appeal and _y_ in the

House of Lords, _x_ representing "against the workman" and _y_ "for the

workman," what does the man in the street think about it? And yet I cannot

believe there is so much difficulty about construing the Act if the Courts

would all steer by those excellent sailing directions of Lord Halsbury and

Lord Davey.

Lord Halsbury said:

"The broad proposition, of course, was that the Legislature intended that

there should be compensation given to every workman in certain trades when

an injury happened to him in the course of his employment."

Lord Davey said:

"I entirely agree with what has been said by my noble and learned friend

on the Woolsack that you ought to construe this Act so as, as far as

possible, to give effect to the primary provisions of it."

Now the primary provision of the Act was to compensate workmen for

injuries, not to leave them uncompensated, and to do the business promptly

and simply. We want more of the spirit of the Act and less of the letter,

and a great deal fewer forms and orders and rules. In a word, more

business and less procedure. As a dear old lady said to me when, after

several efforts to set her affairs right, the registrar and myself had at

last got her to fill up the papers necessary, as things are now, to get

her case through: "I tell you candidly, Judge, all this filling up of

papers and signing things has been more worry to me than the loss of my

old man."

And I'm sure she loved her old man--so what must she have thought of us

and our Act of Parliament?

There may be some who think that it is almost indelicate to discuss such a

subject as the possible fallibility of the higher judiciary. I agree that

it is a subject that can only be treated by one imbued with that reverence

for existing institutions that so happily results from a sane middle-class

education. Moreover, we cannot shut our ears to the sound of much

discussion about what is called judicial bias by the man in the street. In

America the sounds are louder and clearer than they are in England, and

the problem is so much the simpler to understand--especially for the

onlooker. There are great lessons for us to study if we would avoid the

troubles which the American judges have been assiduously looking for and

are now successfully finding. Two interesting books written from different

standpoints, Gilbert E. Roe's "Our Judicial Oligarchy," 1912, and

Frederick N. Judson's "The Judiciary and the People," 1913, show the

eagerness with which lawyers who have human interests outside the daily

problems of their profession are discussing the great questions of the law

and the poor.

The judiciary in America is differently chosen from that in this country

and in some ways it has greater powers. Its instinct and bias are similar

to those of our own judges, but it has not been so successful in

instilling into the minds of the citizens a belief in its infallible

honesty of purpose. There is no doubt that in America there is a growing

distrust of the integrity of the Courts and a feeling that the judges in

their sympathies and views are on the side of wealth and against the

working man. Much of this arises, no doubt, from circumstances which do

not obtain here. But that the middle-class instinct exists on the American

bench even more strongly than it does here can be seen in their history of

workmen's compensation which to an English lawyer is strange and confused

reading.

The common law of America in this matter is the same as the common law of

England. The failure of Priestley, the Lincoln butcher boy, settled the

law of America as completely as it did the law of this country. And though

different Legislatures have endeavoured in different ways to remedy the

grievances of employers, the judges have made this not only difficult, but

in some cases impossible. In 1906 Congress, with the approval of the

President, passed a carefully and well-considered "Employers' Liability

Act" relating to common carriers in the district of Columbia. When it came

before the Supreme Court of the United States this law was held to be

unconstitutional by five judges as against four. To my mind there can be

no comparison between the influence and common-sense of the judgments. The

counting of heads was against the statute, but the expression of the

contents of the heads showed a resultant force of brain power in its

favour. The chief argument of the majority was that some of the clauses of

the statute were "novel and even shocking," just as Lord Abinger found

poor Priestley's contention inconvenient and absurd. Later on, in 1911,

the Court of Appeal found the workmen's compensation legislation of New

York to be unconstitutional, because it placed a "burden upon the employer

without any compensatory benefit." In America the judges have been able,

for reasons that would certainly have appealed to the late Master of the

Rolls and many of his colleagues, to cancel popular legislation. This has

roused a direct conflict in America on the subject of the law and the

poor, and there is a growing feeling that the Courts are not discharging

their duty in relation to social and industrial justice. The recall of

decisions and the recall of judges are popular cries, and there is much

public discussion of such themes.

These things are of interest to us because our laws and our poor come

from the same stock and, though we pride ourselves, and I think rightly,

on the superiority of our legal machine, yet it is not so perfect that we

may not learn something from the troubles and difficulties of our

neighbours. If the working class should, even on false premises, come to a

conclusion that they could not find justice in our Courts owing to

judicial social myopia, it would be a sad day for everybody. For my part,

though I quite recognise that there was a bias in the late Lord Abinger,

for instance, against poor Priestley's way of looking at things, I do not

think that anyone believed then or believes now that he gave his judgment

in any unrighteous class spirit adversely to the rights of Priestley and

mankind. On the contrary, I think he did his best. He expressed what he

and his fellows believed to be the law.

This idea of "bias" in judges is well worth a little consideration. We

have not the same problem that America has about our judiciary and, let us

hope, we never may have, but no one who knows the working man can fail to

have observed that he has been, as he would say, colourably--I modify the

adverb--"colourably fed up" with several recent judicial decisions.

It has certainly become too common a thing in England to grumble about our

judges, and to say--especially when the costs are taxed and the bill is

delivered--that the judge was biassed. But let us remember that it is our

birthright to grumble. To grumble, as Cox pointed out to Mrs. Bouncer, is

a verb neuter meaning to complain without a cause. In England we grumble

at all our best beloved--our wife, our children, our weather, our

constitution, the three-year-old that fails to carry our money to the

winning-post, and the stewards who disqualify him when he does. And when

we grumble at our judges and say there is bias on the bench it is only our

little way.

For what is "bias"? I have never been able to make out why the word should

have a sinister meaning. Bias--as all good bowlers know--is that

mysterious weight within a good "wood" or bowl whereby the skilful is

enabled to direct it by an arc-like course towards adjacency of "the

mark," which is the historic name of the jack. In Lancashire, where the

game of bowls is played, as it should be, upon a crown green--and not, as

in the South, on a tame, flat rink--the bias and the use of the bias make

the glory of the green. By means of bias scientifically used we may reach

"the mark" by the circuitous "round peg," or play straight up against "the

watershed," as I once heard a geologist among bowlers describe the slope

of the green.

What grave problems have to be judicially decided on the green as to the

use of "thumb" or "finger" bias before the "wood" is delivered! What

anxiety is pictured on the face of the bowler! What contortions of his

body are involuntarily indulged in as the bowl speeds on its way and

does--or more often does not--carry out the intentions of the bowler!

And therein, I think, lies the secret of the evil meaning we have given to

the word "bias." We see our "wood" careering across the green and hear it

fall with a dull thud on the path beyond, and instead of blaming ourselves

we blame the bias. Thus, owing to the alarming prevalence of duffers on

the green and in the greater world surrounding it, the word "bias" has

come to be regarded as a tendency that leads astray rather than a tendency

that keeps straight and is up to "the mark."

And when I am asked whether there is bias on the English bench, I

cheerfully reply that I hope and believe there is. I have met with

unbiassed bowls, and very poor "woods" they were. I have met with men

almost devoid of bias, and I never found that they were continuously up to

the mark. Bias is as essential as character to both "woods" and men. As

far as I remember I have never met a judge without "bias" and seldom seen

one whose bias was not fairly under control. We want bias on the bench

because we like to feel that the men who decide our disputes are not mere

automatic legal slot machines, but human beings, with likes and dislikes

similar to ours, trained to hear and determine our disputes and honestly

endeavouring to decide the cases without fear or favour. When judicial

bias carries the judgment beyond "the mark" we grieve not that the bias is

there but that it has been injudiciously used.

From the true bowler's point of view there is only one bias, a bias

towards things, but in our vulgar misuse of language we speak of a bias

against things. And if that is to be allowed no one would grudge a poor

working judge his right to a bias against fraud and dishonesty, greed

and oppression. Such a bias should indeed be instinct in him in the same

way as a golfer has a bias against bunkers, a terrier against rats, and a

mongoose against snakes. But even a good bias requires strict and cunning

control. I remember a very excellent and sage judge--in most matters a

cool fountain of deliberate justice--whose bias towards purity and a high

ideal of man's conduct towards woman was so little under control that in

cases, and especially criminal cases relating to these affairs, it was

very difficult for him to conduct the case with justice to the accused.

His bias against the sin over-rode his judgment of the crime.

The same bias is more often found in juries. I remember a case in which my

father, Serjeant Parry, defended a man named Smethurst, charged with the

murder of his wife. He was admittedly guilty of bigamy, and so incensed

were the jury with his misconduct that their bias carried them right by

the mark of the medical testimony and landed them in the ditch of an

unjust verdict of murder. The case was taken up by John Bright, one whose

bias against all evil was as strong as any man's. The criminal was

ultimately punished only for the crime he had committed. No one will

contend that a bias against immorality is not a good bias and a good asset

in the character of a judge and a man. But the best bias in the world will

not aid you in attaining "the mark" unless it is directed by body and

brain working together in harmony.

And if it be asked if there are judges on the bench who are biassed

towards or against capital or labour, railway companies, motor-buses,

piano organs, Scotch drapers, moneylenders or other products of modern

life, I must answer in all honesty that this is very probably the case. A

fact that seems to be lost sight of in this insistence on the immaculate

judge is that, after all, he is like other human beings, a forked radish

with a fantastically carved head quaintly decorated by a horse-hair wig

generously paid for by himself out of his slender salary. He is just as

much the product of the age as one of yourselves. He has toddled about in

the same nursery, learned in the same school, played at the same

university and lived in the same society as the rest of the middle

classes. Why should you expect in him a super-instinct towards futurist

sociology?

In the old days when everyone believed in witchcraft the judges believed

in witchcraft. Chief Justice Hale solemnly laid it down as law that there

must be such things as witches since there were laws made against witches,

and it was not conceivable that laws should be made against that which did

not exist. It was not, indeed, until the time of George II. that it ceased

to be an offence to endeavour to raise the Devil by magic words and oblige

him to execute your commands. Nowadays even the Devil himself is in danger

of disestablishment, though my conservative views would lead me to

maintain that he is still entitled to judicial notice, and I am inclined

to the opinion that he is not yet surplusage in an indictment for perjury.

In every age your judge will be tinged with the prejudices of his time

and his class, and I cannot see how you can expect to grow middle-class

judges in hot-beds of middle-class prejudices without the natural

formation of a certain amount of middle-class bias in the thickness of

their middle-class wood.

Nor do I think among Englishmen anyone resents such bias as your judges

display in their everyday life. Mr. Justice Grantham, like "A. L.," was

undoubtedly a man of strong conservative bias and showed it openly enough

upon the bench, but he was adored on a working-class circuit, and no man

was better beloved by all who practised or appeared before him, and no

judge strove more earnestly to do justice. The fact is, bias is recognised

among Englishmen as one of the sporting attributes of man and is as

necessary to the instruments with which we play the game of life as to the

"woods" in our old-world game upon the green.

If there is any bias on the bench that is popularly and justly disliked it

is a bias towards formalism and technicalities. Our law of old got a bad

name for that, and in quiet places our reputation still sticks to us.

There are still men and women in the English country-side who think there

is some sort of disgrace attached to a law court. In the quiet County

Courts of Kent and Sussex a defendant often complains in an aggrieved tone

at being brought to a "place of this kind." It argues to his mind a want

of delicacy in the plaintiff, and he states his case without the least

hope that it will be decided on the merits. I remember an amusing

expression of this feeling. A defendant, a cheery, round, pippin-faced

jobmaster with a treble voice was sued by a farmer for keep of his horses

in the farmers' field for several week-ends.

"Well, I'll tell you about it," he piped diffidently in answer to my

request for information, "for I might as well now I'm here. It was this

way. I met Sandy in Crown Lane. I always call him Sandy--you must excuse

me if I'm wrong, I've never been in a place like this before--and Sandy

says to me, 'Jim, why don't you bring your 'orses down to my field for

Sunday like you used to do last year?' Well, I brought my 'orses down on

Sunday and I did that for some two or three months and then I took them

away, and I meets Sandy and he says, 'Jim, why have you taken your 'orses

away?' and I says, 'Because there ain't no food on your field for my

'orses.' He says to me, 'There's more food on my field than your 'orses is

used to.' I says, 'Sandy, you know there's no feed in your field for my

'orses.' He says to me, 'If there ain't no feed in my field for your

'orses there's plenty of recreation for them.' 'Recreation?' I says; 'my

'orses don't want no recreation, they gets recreation in the bus through

the week.' With that Sandy went his way and we never exchanged another

word for three year, and now he brings me to this 'ere place for sixteen

shillings and I've never been in a place like this before."

I explained to the defendant that the County Court was really a place

intended for an affair of this nature and thoroughly equipped to see it

through, but he was not satisfied.

"What right has he to bring me here?" he complained. "I never promised to

pay him anything."

"Was there no agreement between you?" I asked.

"Well, we did agree about one thing."

"And what was that?" I asked hopefully.

"We agreed that if we couldn't settle what I ought to pay," he replied,

eyeing me with doubt and disapprobation, "that we should leave it to a

respectable man."

Now what he really wanted was a judge full of bucolic bias and well

acquainted with vaccine and equine learning. It was only I fancy in a

veterinary sense that he considered that I was not respectable.

And nowadays when we open the Courts to new applicants, and turn over

great schemes of workmen's compensation to judges to deal with, we want

judges to work them who are in touch with the needs and lives of the

working class, not necessarily folk who want to exalt the poor on to

unreal pedestals and clothe them with impossible virtues, but people who

know how near their faults and virtues are to those of the rest of

mankind.

And when we find American judges deciding that no system of workmen's

compensation is to be allowed to become law, and when we note that the

most learned judges of our own Appeal Courts differ constantly as to the

meaning of the words of our own scheme, thereby causing delay, confusion

and expense, it raises a question in one's mind as to whether some far

less exalted Court of Appeal--say, three County Court judges who have to

try these cases face to face with the men and women who are interested in

their decision--would not better meet the wants of the community in

carrying out the scheme and come nearer to the ideal of "the respectable

man." A bishop has once been a curate, but a Lord Justice of Appeal has

never been a County Court judge. The Workmen's Compensation Act is a

practical business machine of a complicated character, and it is scarcely

a sensible thing that the men who have to keep it going should work under

the theoretical direction of men who have never seen it working.

And there is another reason why the appeals in these cases should be

removed from the Court of Appeal, and that is a very practical one--the

Court is over-crowded and has no time to try them. Even now as I write

there are cases, many of them perhaps merely questions of the payment of a

few shillings a week, which have been waiting for many months to be

reached. From the point of view of everyone concerned, except the lawyer,

there is no health in this litigation. In so far as the administration of

the Workmen's Compensation Act has been a success it has been because

insurance companies and employers and trade unions and workmen have either

kept out of Court altogether or, when they have got there, have assisted

the registrars and judges of the County Court to work the thing on

business lines and have resisted in a large measure the temptation in the

uncertainty of the decisions to speculative litigation. There is still

enough English common-sense left among us to muddle through most things,

but the Workmen's Compensation Act, as interpreted in the Court of Appeal,

has tried it fairly high.

CHAPTER VI

BANKRUPTCY

"In a lofty room, ill lighted and worse ventilated, situate in

Portugal Street, Lincoln's Inn Fields, there sit nearly the whole year

round, one, two, three or four gentlemen in wigs, as the case may be,

with little writing desks before them, constructed after the fashion

of those used by the judges of the land, barring the French polish.

There is a box of barristers on their right hand; there is an

enclosure of insolvent debtors on their left; and there is an inclined

plane of most especially dirty faces in their front. These gentlemen

are the Commissioners of the Insolvent Court, and the place in which

they sit is the Insolvent Court itself."

CHARLES DICKENS: "Pickwick." Chap. XLIII.

A bankrupt is not a person who breaks the bank, as is popularly supposed.

On the contrary, he is, or ought to be, by his derivation a person whose

bank is broken by others. A learned professor tells me that the

Florentines of old had some sort of ceremony in which they marched to

their insolvent neighbour's office and broke up his bank, or bench, or

money table to show the world that he was no longer commercially sound.

Until recently in English law bankruptcy was merely a trader's remedy

designed to protect an unfortunate business man from life-long

imprisonment for debt resulting from unfortunate business ventures.

Latterly the privilege of bankruptcy has been extended to every citizen

that has a debt of fifty pounds and ten pounds to pay the fees necessary

to filing his petition.

But, in order to become insolvent, it is a condition precedent that at

some time or another one should have been solvent. And one difficulty

about applying any form of bankruptcy laws to the poor is that they are

too often born insolvent, live insolvent, and die insolvent. There must be

many fellow citizens in this country of ours who never knew what it was

for twelve months of their life to have a living wage and be out of debt.

As long as we have imprisonment for debt credit of some kind and on some

terms ruinous or otherwise is always obtainable. At the present,

bankruptcy is almost regarded as a sign of grace, a condition of

honourable martyrdom into which the careless and good-natured ones of the

world find themselves after a short struggle in the slough of solvency. To

the rich it is a very present help in time of trouble, but the poor, never

having been sufficiently solvent, can never make use of its aid.

When the worker has a living wage guaranteed him by the State it will be

necessary to make him a new bankruptcy law so that the living wage cannot

be attached and converted to the use of the Shylocks of this world. The

law protects the infant and the idiot from the results of their own

foolishness, and we shall find it advisable in the future to extend

similar protection to the grown-up idiots and infants who are all too

prevalent in the world. Antonio was a normal business man, but he was no

match for Shylock, and, though no lawyer can approve of the way in which

the Courts treated Shylock, the real lesson of the story is that laws are

necessary to protect Antonio, the fool, from Shylock, the knave.

In order, then, that the full blessings of bankruptcy may be made

available to the poor, we must certainly tackle the problem of the living

wage, which to my mind is the most urgent social question of our time. So

many things seem to hang upon it. Rent, taxation, education, physical and

moral improvement, eugenics, all the social discussions of the time, land

you back on the question of the living wage. Sometimes, I think, we are on

the eve of a new era when every capable honest citizen will have the same

right to a living wage that he now has to free board and lodging and stone

breaking in the workhouse. I would rather have a legal right to a living

wage than a vote, unless I was clear that I could use the latter to obtain

the former and many better things to boot.

As a matter of dull, dry, literary history all the prophets and singers

and poets, from King David, Isaiah and Jeremiah down to Carlyle, Kingsley,

Ruskin, Dickens and Tom Hood, have said or sung the praises of the living

wage. There are many who regard Jeremiah as a kind of gloomy dean, but for

my part I find him most encouraging. When he says: "Woe unto him that

buildeth his house by unrighteousness and his chambers by wrong; that

useth his neighbour's service without wages and giveth him not for his

work," I think that he is absolutely right on the spot. I cannot believe

that it was his view that woe would providentially descend upon the man

who paid sweating wages and that it would come in the shape of lions and

bears or lightning and earthquakes; on the contrary, I read it, that, in

Jeremiah's view, it was the duty of citizens to see that their fellows did

not behave like this. The prophet intended to tell us that our first duty

was to persuade our fellow citizens employing labour to give their workmen

a living wage, but if we could not achieve this by reasoning and exhorting

them, then it was our duty to give such anti-social churls statutory woe,

just as we mete out statutory woe to the naughty ones who get drunk and

beat their wives, and, indeed, for the same social reasons.

David and all his biblical backers were as eager as Mr. Philip Snowden and

his Socialist friends to promote the living wage, and, as they put it, to

"deliver the poor from him that is too strong for him." That, in a phrase,

is the modern problem of the living wage. The trust, the combine, the

limited company, the corporation or Government office are bound in the

nature of things to become the spoilers of the poor and needy unless there

is some power delegated by the State to some judicial authority to

"deliver the poor from him that is too strong for him."

But it is not sufficient to cite poetry and Psalms and the "Song of the

Shirt"--for then your Thomas Gradgrind comes along--a man of realities,

sir, a man of facts and calculations, a man who proceeds upon the

principle that two and two are four and nothing over, and who is not going

to be talked into allowing for anything over--Thomas Gradgrind shakes his

square finger at you and says: "How are you going to do it?" And I agree

that Gradgrind is deserving an answer. I do not say we must wait until we

convince him, for Gradgrinds are obstinate, stubborn fellows, but we must

satisfy the majority that we have a fair answer to his objections and a

practical programme to propose. The problem cannot be shirked for ever.

Even in the prophet Carlyle's day it was a matter in regard to which "if

something be not done something will do itself one day and in a fashion

that will please nobody."

And shortly the way in which it will come about is by voluntary

conciliation, the erection of joint boards of employers and workmen with a

right of appeal to a business legal tribunal--something akin to the

Railway Commission--which shall have power to make and enforce a decree to

the worker of at least so much of his fair share of an industry as shall

amount to a living wage. I can see nothing revolutionary in this proposal.

It really only follows out the trend of modern legislation. If a man has a

smoking chimney, or pollutes a river, or goes about in public with an

infectious disease, we fine or imprison him for his anti-social

misconduct. Surely a man who pursues an industry that does not make a

living wage for the workers in it is equally an enemy of the people, to be

dealt with as such by the law! As Mr. Justice Gordon laid it down in the

Australian Labour Courts: "If any particular industry cannot keep going

and pay its workpeople a living wage it must be shut up." Some day that

will be the law of England. No one can deny the common sense of it.

A very encouraging sign of the times is that both sides are discovering

the uselessness of strikes. In Mr. Snowden's frank words, "a strike never

did much substantial gain to the strikers." It is not only that the strike

or lock-out is a crime against helpless women and children, that it wastes

the substance and savings of employers and employed and embitters their

relations for a generation--all that we knew before; the new and

comforting message is that the strike does not "get there," it does not

succeed, and therefore, as Mr. Snowden says, "just as war between nations

cannot be defended either ethically or economically, so labour disputes

are indefensible."

And there are other indications that conciliation and agreement in labour

matters are to have a fair trial. Already in the railway world an

interesting experiment has been made. I have seen enough of it in the

working to know that it is not such a spavined animal as some of our

political jockeys would have us believe. When the railway conciliation

boards were set up the employers and workmen, where it was possible,

agreed upon an independent chairman to sit with them in case there was a

deadlock. Several boards of different companies invited me to undertake

this honourable position. I need hardly say that I fancied myself not a

little at receiving such flattering invitations, and meeting a friend, who

was an eminent railway solicitor, I told him the news--not, I suspect,

without a note of pardonable triumph in the phrasing.

"What!" he cried; "do you mean to say that the companies and the men have

agreed upon you as chairman?"

"That is so," I replied, with dignity, being a little hurt at his surprise

and astonishment.

"Well, I'm----. However you'll never have anything to do," he added with a

grunt of satisfaction.

"And why not?" I asked.

"Because," he replied, with great deliberation, "if they could agree about

you they could agree about anything."

I thanked him for the compliment, but, analysing the saying since, I am

not so sure that the commendation I accepted was really proffered to me.

Be that as it may, it has turned out to be true. On the few occasions on

which my services were required, I have found that things were capable of

adjustment and settlement owing to the excellent good feeling on each side

and the real endeavour made by everyone to try and understand the other's

point of view. This is where the independent chairman is of real service.

In explaining to his virgin mind the difficulties of the case, every point

in it has to be discussed and explained anew, and in this way the weaker

positions of the argument are made clearer to those who are defending

them. Thus it becomes easier to give way about some matter of detail, and

concession breeds concession.

Without making too much of my own small experience, it bears out my

theoretical expectation, and I am satisfied that a conciliatory court for

trade disputes is a live business proposition, calculated to save

employers much unnecessary woe, and that if Jeremiah had thought of it, he

would have proposed to set one up as a practical step towards the living

wage.

Until, then, we have established a living wage for the worker, the

question of his bankruptcy is in a large measure academic. At present

bankruptcy, like divorce, is rightly regarded as a luxury for the

well-to-do. I know that to some minds the word "bankruptcy" connotes

poverty, but if you look into the facts and history of the matter, you

will find that, though bankruptcy may on occasion lead to poverty, a poor

man never does, or can, become a bankrupt.

People fail to the tune of five or six million pounds a year, but when you

analyse the list of the insolvent you will not find many poor folk among

them. There are lords and gentlemen, solicitors and stockbrokers,

merchants and manufacturers, builders and farmers, and butchers, bakers,

and candlestick makers.

But the nearest you will find to poor people are lodging-house keepers and

coffee-house and fried fish shop proprietors. These are precarious trades,

and the working man, being a good sportsman, likes to have a gamble in

them with his savings. In this way he joins the aristocracy, and becomes

an eligible bankrupt. But the labourer and artisan, the real working men,

have no more chance of bankruptcy than they have of election to the

Athenaeum or the Carlton.

Bankruptcy is a legal status jealously guarded by the caste to which it

belongs. The poor man reads in the paper of builders and merchants failing

for their thousands, of well-paid accountants carefully investigating the

history of their financial fall; he puts his head into the Registrar's

Court and hears an amiable official receiver sympathetically tracing the

career of the well-groomed bankrupt in front of him; he sees the judge

present the unhappy fellow with a clean slate, from which all his debts

are wiped away, and hears him announce to the unfortunate insolvent the

date upon which the law will allow him to start becoming insolvent again.

And the working man thinks to himself of the twenty or thirty pounds that

he owes, and how pleasant it would be if an accountant would add it up and

a judge tell him that he need not worry any more about it; but when he

begins to inquire further into the subject he finds that bankruptcy is one

of the good things of this world that he cannot afford.

Bankruptcy, successful bankruptcy, is not so easy of achievement as you

might think. It is not everyone who knows how to become a bankrupt. There

are a lot of big, expensive law books written on this subject by clever

fellows who spend their lives soothing the bankrupt's last hours and

winding him up according to law and order, with costs out of the estate,

but you need not study these to learn how to become a bankrupt. Most

bankrupts are pig-headed fellows, and achieve bankruptcy in their own

foolish amateur way. They read the books about it afterwards.

To begin with, you certainly want money, or at least an overdraft and

plenty of credit. Intending bankrupts generally wear very good clothes;

especially are they particular about the shine of their silk hat. Bankers

and intelligent business men have, in all ages, given credit to top hats,

white waistcoats, and gold watch chains. The poor man has none of these,

and therefore cannot obtain that overdraft which is one of the first

essentials of bankruptcy.

The bankrupt has a curious affection for jewellery. He buys large

quantities of this commodity, and sells it again at a loss to stave off

the evil day and add to his deficiency. I read in the Board of Trade

reports of a failure due to gambling and extravagance, in which the debtor

purchased jewellery for L40,000 and sold it the same day for L10,000. If

he had been a poor man I think maybe the police would have tried to find a

law to give him a rest cure for a few months in one of His Majesty's

gaols, but he failed for over L70,000, and the probable value of his

assets was L175.

Perhaps he was a bit of an aristocrat. Anyhow the police left him alone. I

cannot even tell you his name, for the kind Inspector-General in

Bankruptcy, fearful of causing pain to the sorrowing, never tells you the

names and addresses of the people whose history he writes. He speaks of

him as "No. 1512 of 1911." The poor fellow had no occupation, his cruel

father only allowed him a miserable thousand a year, so what could No.

1512 do but run into debt? The wonder is that he failed for so little as

L70,000.

No. 614 of 1907 was not much of a record, but he will do as another

example. He, too, had no occupation except qualifying for a bankrupt and

ultimately failed for L21,292 with assets _nil_. He started his wild

career at the age of nineteen with expectations of a fortune when he got

to the age of twenty-five. With that charming simplicity and cunning,

characteristic of the whelps of the vulgar rich, he proceeded to

moneylenders, and at the date of the receiving order had created charges

exceeding L430,000 on his reversion of such complexity that every

mortgagee disputed the right of every prior encumbrancer. This would not

matter so much, as all these victims were doubtless moneylenders and a lot

of the money would go to estimable lawyers to smooth out the wrinkled

parchment muddle, but then at the back of all those were the unsecured

creditors, poor tradesmen and others. They were to get nothing.

No. 1103 of 1908 was an even smaller fellow. This debtor was educated at

Oxford and, on leaving the university in 1901, he was in debt to the

extent of L4,500. I have a passion for statistics, and I should like to

see a balance sheet showing on one side the expenses of the four thousand

Oxford undergraduates during three years of residence, and on the other

side the earnings of the same four thousand undergraduates for a similar

period in, say, fifteen or twenty years afterwards. I fear it would not

be much of an advertisement for Oxford. No. 1103's father paid up his

creditors to the extent at least of fifteen shillings in the pound, and

gave him a fresh start. He was in trouble again in 1906, through betting

and extravagance, and failed for L20,392--assets L1,103.

The French have an excellent system of declaring these youngsters to be

prodigals and putting them under a committee as we do lunatics with

property, and no doubt in money matters they are akin to the insane, and

are really to be pitied and cared for. But to the poor it must be strange

to see debt and the disaster of debt causing such different results in law

to different classes of people, and it must be hard for them to understand

why they, too, are not fit subjects for the blessings of bankruptcy rather

than gaol.

And what am I to say to my friend Joseph the signalman, at twenty-nine

shillings a week, when he shows me some of these spicy stories of the

Inspector-General's report cut out of the local paper.

"What has it all got to do with you, Joseph?"

"Well," he says, "I've been thinking why should not I do a bit of a

failure like No. 1512 of 1911? I can buy a gramophone and a watch, and a

few lucky wedding rings and a family Bible, and a plush drawing-room suite

on the instalment system, and I can borrow a pound or two on a promissory

note. Of course betting and beer cannot be done on the nod in my class of

life, but one can owe a bit of rent, and altogether I see my way to do a

failure up to, say, thirty pounds. Why shouldn't I go bankrupt?"

"Well, the answer is very simple," I have to tell him. "The rules of the

game are made by the rich for the rich, and not for you, Joseph, at all.

Oh, dear, no! In the first place you must have a debt of fifty pounds."

"Well," replies Joseph, "I think I could bring it as high as that if I

tried."

"And next you must have a creditor to make you bankrupt, and unless he

thinks there is some stuffing in you or wool on your back a creditor is

not going to waste his time and money making the likes of you bankrupt."

"But," says my hopeful friend Joseph, "what is the meaning of a chap

filing his own petition? I've often read of that. Why shouldn't I file my

petition?"

"My dear, simple fellow, you surely do not think the clever ones of the

earth who look after your interests have not thought all that out? You

take your petition to the Bankruptcy Court and see what happens. You will

find the usual janitor at the door with his open palm. Of course you are

expected to pay a fee--you have learned enough about English Courts to

know that you do not get 'owt for nowt' in any of them. But in the

Bankruptcy Court, my young friend, they foresaw you coming along and they

have put the figure too high for you. Ten pounds, money down! That's the

price. If you want to set all the pretty little figures working, the

official receiver smiling, the registrar writing it all down, and the

judge nodding on the bench, and the Board of Trade publishing statistics

about you--ten pounds into the slot, my young friend, and the figures will

work.

"But you have not got ten pounds, Joseph, and you could not raise the sum

if you tried, so you will have to go back to work and pay twenty shillings

in the pound somehow. And don't go and sell your gramophone and

drawing-room suite, for they are on the hire system, and that would put

you in the dock, where I hope you may never be. No. 1512 bought his

L40,000 worth of jewels out and out, or said he did, and it was a Paris

jeweller, anyhow, and I believe he was one of the 'nuts' and not your

class at all, Joseph, but you may take it from me that you must not expect

to be treated as he was. Have I said enough, my dear friend? Are you quite

satisfied? Bankruptcy, I can assure you, is not for Joseph. Oh, dear, no!"

It is only fair to the law and to the memory of Mr. Chamberlain, who made

the law, to remember that when he introduced the Bankruptcy Act of 1883 he

invented a system of small bankruptcies called administration orders,

whereby poor folk whose debts do not amount to fifty pounds may make a

composition with their creditors. Let me set down in his own words exactly

what he intended and tried to do. I quote from his speech on the second

reading of the Bill:

"What he now desired to call attention to was the clause which followed

and which dealt with the case of debtors who owed less than fifty pounds.

That was the class of debtors who filled our County Courts with plaints

and added very considerably to the number of the occupants of our gaols.

It had always been felt to be a great hardship that while a large debtor

could with ease relieve himself of all his liabilities he or his trustees

might be prosecuting a poor man for thirty or forty shillings, and the

latter might be sent to prison without having any means provided for him

to make a composition with his creditors, and when, after satisfying the

debt, he came out of gaol he was still liable in full to all his other

creditors."

* * * * *

"But the more important provision which he had made for dealing with this

subject was that under which a County Court judge might in future make an

order for the payment by a debtor who owed less than fifty pounds by

instalments or otherwise of all or any part of his debts. A debtor who was

brought up on a judgment summons or a County Court plaint might state that

he was indebted to other persons, might give in a schedule of his debts

and propose an arrangement for discharging them, and, if the Court thought

it reasonable, it might at once confirm it, so that a small debtor would

thus be in exactly the same position as a large debtor who had succeeded

in making a composition with his creditors or in arranging for a scheme of

liquidation. Although he had not abolished in all cases imprisonment for

debt, yet, if these provisions became law, it could no longer be said that

any inequality existed as between rich and poor. The resort to

imprisonment to secure payment would be much easier, and a large

discretion would be vested on the judges to arrange for the relief to the

small debtor by a reasonable composition."

I have set this out at length because it is enormously encouraging to know

that thirty years ago Mr. Chamberlain's ideal was to destroy the County

Court imprisonment for debt and to give the working man who fell into debt

a bankruptcy system similar to that of the rich.

Why did it fail?

Well, it has not been wholly a failure, but it certainly has not fulfilled

all its author's generous hopes. In the first place the fifty-pound limit

is too small, another reason of its non-success is that it is a voluntary

system of some complication in competition with the simple, brutal method

of the judgment summons and imprisonment for debt, but probably its

unpopularity is chiefly due to the fact that the Treasury has always

deliberately crabbed it by imposing harsh and unreasonable fees.

No system of this kind will be successful without compulsion and some

clerk of the Court in the position of an official receiver to advise the

poor how to go about the matter and to see that the order made is carried

out. Such a system is in vogue in some Courts and has proved a success in

mitigating imprisonment for debt and holding out a helping hand to those

who were drifting into insolvency. But the system as it stands depends too

much on the initiative of the County Court judge or the registrar. Thus

we find on a working-class circuit like Oldham, Rochdale, etc., there will

be over six hundred orders made, whereas in Whitechapel only two orders

are made in the same year. Systems favourable to the working classes

flourish more vigorously in the North than in the South.

You must not suppose the working man is allowed to cast off his debts in

the wholesale way in which the thorough-bred, blue-blooded bankrupt does.

Not a bit of it. The order made against him is that he shall pay his debts

to the extent of so many shillings in the pound at so many shillings a

month. If he does not carry out the order there is prison for him for

every instalment he fails to pay if the judge so orders, or at the best

his order is rescinded and all his creditors are down on him again as

before.

But the main drawback to the business is the extortionate fees charged by

the Treasury. Here is a poor devil with twenty-five shillings and a wife

and family and, let us say, thirty pounds of debt, and the judge gives him

an administration order to pay ten shillings in the pound at five

shillings a month. The Treasury are at once down on him. Their fees are

always calculated, not on the dividend paid, but on the total amount of

the debts, and they insist in every case on two shillings in the pound.

Thus, in the case of the man with thirty pounds of debt, the Treasury want

three pounds money down before the creditors get anything. In 1911 the

Treasury took no less than L13,000 in these fees.

In this matter we cannot acquit the law of the offence of grinding the

poor. Imagine a wealthy country like this squeezing the insolvent poor out

of their weekly pittances instead of helping them to pay their debts. I

call it a wicked policy for the State to throw impediments in the way of a

working-class man who is struggling out of the back-waters of debt into

the fairway of solvency.

Do not let us shut our eyes to what it means, for the Treasury is only our

servant and ought to be doing our will, and the responsibility is yours

and mine. For we know that every penny of that L13,000 comes out of the

mouths of hungry women and children or, at the best, robs them of so many

boots and so much clothing.

What fees do the Treasury receive from No. 1512 of 1911 and his like? Two

shillings in the pound on the rich man's L70,000 of debt might enable the

Chancellor to treat the poor more leniently. But the rich man pays his

entrance fee of ten pounds and is a life member of the Bankruptcy Club.

The Treasury never thinks of touching him for a subscription of two

shillings in the pound on the amount of his debts. Some day there will

come along a Chancellor of the Exchequer who will be a Good Samaritan, and

the Treasury will cease to strip the poor debtor of his raiment to the

tune of L13,000 a year.

Of course it is very easy to blame a public department and throw ugly

words at the lords thereof. One gets into a bad habit of blaming those in

high places for the inequalities of things. I wonder if I were Chancellor

whether I should get rid of that shameful tax on the poorest of the poor.

Perhaps not. After all, the Good Samaritan was speculating with his own

oil and investing his own twopence. The oil and the twopence of the

Exchequer belong to the public and must be dealt with according to the

rules of statecraft.

And there may be some grave national danger beyond my humble ken that

makes it necessary for England to dirty her hands with that L13,000.

CHAPTER VII

DIVORCE

"We have thought to tie the nuptial knot of our marriages more fast

and firm by having taken away all means of dissolving it; but the knot

of the will and affection is so much the more slackened and made

loose, by how much that of constraint is drawn closer; and on the

contrary, that which kept the marriages at Rome so long in honour and

inviolate, was the liberty every one who so desired had to break them;

they kept their wives the better because they might part with them if

they would; and in the full liberty of divorce, five hundred years and

more passed away before anyone made use on't."

MICHEL DE MONTAIGNE: "Essays."

Translated by Charles Cotton. Book II., Chap. XV.

Nearly four hundred years ago Thomas Cranmer, Archbishop of Canterbury,

was burned at the stake over against Balliol College, Oxford. You remember

how a few days before, in a moment of weakness, he had signed a

recantation, and how when the fire was kindled and the flames licked up

the faggots they revived the spirit of the martyr within him, and he

thrust his right hand into the flames, crying out: "This was the hand that

wrote it; therefore it shall first suffer punishment." But if that hand

had offended in matters spiritual, in practical matters it had done good

work for the State.

Cranmer's "Reformatio Legum Ecclesiasticarum" contains some of the best

sense about divorce law reform that I have ever read. Its proposals are

moderate, sensible and in harmony with the religious ideas of his day,

which seem to have been broader and more rational than those of to-day.

Had Edward VI. lived a little longer Cranmer's treatise would have been

enacted as the statute law of the country. It is pitiful to think of the

four hundred years of misery and injustice under which the citizens of

this country have suffered in matters relating to divorce owing to a

change of Government in 1553. The Scots did better out of the Reformation

and have had a more or less satisfactory divorce law in working order

since that date.

Shortly, the propositions that Cranmer proposed were these, and they will

be found, I think, to run parallel with the views of the common-sense

citizen of to-day. He laid down the command that no husband or wife may

abandon the other of his or her own free will and, in order that this

might be a practical ideal, he set down the causes for which the Courts

were to grant relief. Divorce was allowed for adultery, unless both

parties were guilty; desertion; the unduly protracted absence of the

husband; or the deadly hostility of the parties. Prolonged ill-treatment

of the wife gave her a right to divorce, but even here, as long as there

was any hope of improvement, the duty of the ecclesiastical judge was to

reason with the husband and make him give bail for good behaviour. Only in

the last resort must "she on her part be helped by the remedy of divorce."

Great stress is laid throughout the treatise on the desirability of

reconciliation. "Since in matrimony there is the closest possible union

and the highest degree of love that can be imagined, we earnestly desire

that the innocent party should forgive the guilty and take him back again

should there seem to be any reasonable hope of a better way of life."

Practical effect was to be given to this principle by the Court before

proceeding to divorce.

Cranmer was entirely at one with the more advanced thought of to-day in

his detestation of "separation orders." Separation without divorce was, he

realised, an overture to immorality.

"It was formerly customary," he writes, "in the case of certain crimes to

deprive married people of the right of association at _bed and board_

though in all other respects their marriage tie remained intact; and since

this practice is contrary to Holy Scripture, involves the greatest

confusion, and has introduced an accumulation of evils into matrimony, it

is our will that the whole thing be by our authority abolished." What he

would have said about our wholesale police court method of separating

married people without giving them any rights to form new ties one does

not like to imagine. One cannot turn from the short and pithy "Reformatio

Legum Ecclesiasticarum" of the sixteenth century to the colossal unwieldy

Blue Books of the twentieth century with any sense of satisfaction.

Perhaps the most interesting thing to be got out of the latter is a study

in contrasts between the body, flavour, and bouquet of archbishops of

different vintages.

Thomas Cranmer's services to the State being no longer available after

the Balliol fire, the choice of his Majesty Edward VII., when he issued

his Royal Warrant in 1909 for the Divorce Commission, fell on "The Most

Reverend Father in God Our right trusty and entirely beloved Counsellor

Cosmo Gordon, Archbishop of York, Primate of England and Metropolitan."

One would have hoped that after four hundred years further consideration

of Cranmer's views on divorce--the latter-day representative of Cranmer's

Church would have been able to give King Edward VII. at least as good

counsel as his predecessor gave to Edward VI. No doubt the Minority Report

that he ultimately wrote fairly represents the narrower views of modern

ecclesiastics, but it is a sad thing to see the leader of a great Church

absolutely out of touch with the practical reforms that those who know the

lives of the poor admit to be necessary. I should regret if, in a moment

of spiritual insight, it should be made clear to our good archbishop that

in signing the Minority Report his right hand had been guilty of offence,

or that he should think fit to discipline himself after Cranmer's example;

but if he had thrust his Minority Report into the fire, Church and State

might have sung a joyful psalm of conflagration and congratulation. Alas!

Edward VI. passed away without reform, and our brave King Edward VII.

changed his world whilst the Commissioners were still commissioning, and

maybe it will be Edward VIII.'s turn some four hundred years hence to sign

the new divorce law. Let nothing be done in a hurry.

From Cranmer's day until 1857 no divorce law was passed. In the meantime,

if you were a peer with a naughty wife, you got an Act of Parliament

passed to divorce her. It was an expensive proceeding and, incidentally,

of doubtful legality. But the eugenics of nobility and the purity of breed

in the peerage made some such machinery necessary, and so you had "An Act

for Lord Roos to marry again," and others similarly entitled. Only the

very rich at the rate of two or three a year could avail themselves of

this procedure, and, of course, the very poor had not a look in at all.

It was a judge who awakened the world to the iniquity of it all, and he

did it by a jest. There are some funny things said in the High Court

to-day, but they do not seem to be designed to push the world along as

this witty speech did. It was Mr. Justice Maule--a sly dog, the hero of

many a good circuit story--that one about the threatening letters, for

instance--it was Maule J. in a bigamy case, _Regina_ v. _Thomas Hall_,

tried at Warwick in 1845, who woke up the country to the fact that there

was a divorce problem, and that it wanted solving.

Hall was a labouring man convicted of bigamy and called up for sentence.

Maule, in passing sentence, said that it did appear that he had been

hardly used.

"I have indeed, my Lord," called out poor Hall, "it is very hard."

"Hold your tongue, Hall," quoth the judge, "you must not interrupt me.

What I say is the law of the land which you in common with everyone else

are bound to obey. No doubt it is very hard for you to have been so used

and not to be able to have another wife to live with you when Maria had

gone away to live with another man, having first robbed you; but such is

the law. The law in fact is the same to you as it is to the rich man; it

is the same to the low and poor as it is to the mighty and rich and

through it you alone can hope to obtain effectual and sufficient relief,

and what the rich man would have done you should have done also, you

should have followed the same course."

"But I had no money, my Lord," exclaimed Hall.

"Hold your tongue," rejoined the judge, "you should not interrupt me,

especially when I am only speaking to inform you as to what you should

have done and for your good. Yes, Hall, you should have brought an action

and obtained damages, which probably the other side would not have been

able to pay, in which case you would have had to pay your own costs

perhaps a hundred or a hundred and fifty pounds."

"Oh, Lord!" ejaculated the prisoner.

"Don't interrupt me, Hall," said Maule, "but attend. But even then you

must not have married again. No, you should have gone to the

Ecclesiastical Court and then to the House of Lords, where, having proved

that all these preliminary matters had been complied with, you would then

have been able to marry again! It is very true, Hall, you might say,

'Where was all the money to come from to pay for all this?' And certainly

that was a serious question as the expenses might amount to five or six

hundred pounds while you had not as many pence."

"As I hope to be saved, I have not a penny--I am only a poor man."

"Well, don't interrupt me; that may be so, but that will not exempt you

from paying the penalty for the felony you have undoubtedly committed. I

should have been disposed to have treated the matter more lightly if you

had told Maria the real state of the case and said, 'I'll marry you if you

choose to take your chance and risk it,' but this you have not done."

And so the judge gave Hall three months or, as some say, four. But that

was because he had not told Maria all about it. It was for not playing

cricket, not for breaking the law. And where the parties commit bigamy out

of sheer respectability and a desire to placate Mrs. Grundy and have some

marriage lines in a teapot on the mantelpiece to show the lady who lives

next door, the judges, providing there is no deception, wisely treat the

offence as something far less deserving of imprisonment than non-payment

of rates. Why the police prosecute in these cases the chief constable only

knows.

And the scorn and irony that Maule poured on the law of divorce roused the

public conscience, and there was a Royal Commission in 1850 and a Divorce

Act in 1857, and the result was the Divorce Court as we know it, an

excellent tribunal for the matrimonial troubles of well-to-do people, but

of no use to poor Hall and Maria. For Maule's words slightly paraphrased

might be as truly spoken to the bigamist of to-day as they were to poor

Hall.

And four years ago we had another Royal Commission, and hundreds of

witnesses were examined, and papers and reports handed in, and many days

spent in collating and considering the same, and much stationery consumed.

It was a shabby thing to the poor to institute this long-winded inquiry.

There was nothing to inquire into. The mountain has finished groaning, and

the expensive and ridiculous mouse has made his appearance--and all it

comes to is that what good old Thomas Cranmer said ought to be done in

1550 the majority think might be experimented on in 1914; only--the

archbishop of to-day is no longer on the side of reform.

That, I suppose, shows us very fairly the pace at which the world moves

forward and the Church moves backward. In a great and necessary social

reform, such as this, the Church occupies the position of the

old-fashioned horse lorry strolling down the middle of the road amiably

blocking the modern traffic of the city. It is all very pleasant and

reassuring to those nervous folk who fear we are rushing like Gadarene

pigs into a sea of legalised vice and immorality, but to visionaries and

dreamers like myself who would like, as the children say, "to see the

wheels go round" in their lifetime, it has its mournful side.

There are two ways in which those who are satisfied that the world is the

best of all possible worlds meet proposals for reform. If they are backed

up by popular clamour and agitation they say with some show of reason

that it would never do to give way to threats of violence. If, on the

other hand, the campaign for reform is conducted by mannerly argument it

is commonly said that there is no demand for a change. Comfortable

clerical persons are never tired of telling you that there is really no

demand from the poorer classes for any reform of the divorce laws.

True, people do not go out in the streets and break the windows of Cabinet

Ministers or make themselves politically disagreeable after the fashion of

the middle classes who have grievances real or imaginary. But anyone whose

advice is sought by the poor in their troubles knows that the demand for

divorce exists if it were of any use uttering it aloud to our smug and

respectable rulers. Of course the demand or no demand is immaterial to

anyone who has grasped the fact that it is a principle of elementary

justice that the poor should have the same audience and remedies in all

our Courts as the rich.

The real demand for divorce is to be found in the circumstances of the

lives of the poor. I propose to set down a few typical cases drawn in

every instance from public published records.

Jane married Fred when twenty-two years of age. Soon after the marriage he

began to ill-treat her and would not work. Jane's parents helped them in

business. Fred continued his ill ways and at length gave Jane a beating.

Jane took out a summons, but would not face the Court, and forgave Fred.

After five years of unhappy married life Jane went back to her parents

taking her two children, Fred agreeing to pay her three shillings a week.

At the end of nine months he ceased to send any money and disappeared.

For seven years Jane lived with her parents until they died. After their

death she found it a great struggle to live and pay the rent. Charles now

comes on the scene, he takes lodgings and pays the rent. Ultimately

Charles and Jane live happily together and there are two children of the

union. Charles provides for Fred's children as well as his own. Charles

and Jane would like to marry for their own sake and for their children's.

In so far as there is any sin or immorality in this story the promoters of

it and the sharers in it are those who stand in the path of divorce

reform.

Here is another typical case. George marries Mary, their ages are eighteen

and seventeen. Soon after marriage Mary--who comes of an immoral

family--starts drinking and going about with other men. Ultimately she

deserts George and becomes pregnant by another man and is confined in

hospital. The guardians proceed against George for the expenses of the

confinement, but he is able to prove to their satisfaction that he is not

the father of the child. Mary then disappears to further infidelities and

George goes back to live with his mother. Later on Anna appears on the

scene and George and Anna have now a comfortable home and healthy infant.

"They think a deal of it and wish it could be legitimate."

So, no doubt, do Charles and Jane and many other poor parents in like

case. The law says that these people are entitled to have a divorce, only

the law erects its Court in a corner of London inaccessible to these poor

provincials, and makes the costs and fees and services of its judges and

officials and counsellors so expensive that there is no possibility of

Charles and George, and Jane and Anna, and their little infants having the

blessings of legal and holy matrimony because they have not the cash to

purchase the luxury which is not for the likes of them anyhow. And when it

is suggested that divorce might be cheapened and made available for these

poor citizens archbishops shake their heads, and legal bigwigs, with their

eye on the fees and the costs, hold up their hands in amazement. Divorce

is a reasonable proposition for Marmaduke and Ermyntrude, of "The Towers,"

Loamshire, but for George and Anna in Back Tank Street,

Shuttleborough--not likely. There is no demand for it, says the Minority

Report, and its worthy authors point out with cynical contempt for the

working classes that they have got a system of separation orders which is

really all they require.

Now if there is one thing which the evidence before the Commission puts

beyond doubt it is that the law in relation to separation orders induces,

invites, and causes immorality in the poor. Cranmer, you remember, knew

all about that, and looked on separation without the right to remarry as

an unclean thing. But since the sorrows of the poor in their marriage

shipwrecks were so manifest, and the Divorce Court was closed to them,

systems of magisterial separation orders, cheap permanent divorces,

without the right to marry again, have become the order of the day.

There are some six thousand of these decrees made annually. The evidence

is overwhelming as to the evils that spring from these orders. As Mrs.

Tennant reports, "I believe that separation orders, the general

alternative offered to divorce, work badly in working-class houses, and on

the whole make for an increase rather than a diminution of immorality. We

have to consider housing conditions and economic circumstances which often

do not make for clean or wholesome ways of life, and where the relief

offered by separation is not only inadequate but positively mischievous."

Put in plainer terms by the witnesses, a labouring man, if he has to find

a home for his children, has to find a woman to keep house for him; a

woman of the same class has to pay a rent, which necessitates the taking

in of a lodger. Human nature being what it is, it seemed superfluous to

appoint a Royal Commission of trusty and well-beloved ones to tell us what

would happen. This is a system that the Archbishop of York thinks

"probably fulfils its purpose fairly well."

Of course, it all depends what its purpose may be. If it is its purpose to

stand in the way of cheap divorce and the rights of the poor to have the

same chance of rescue from a shipwrecked marriage that the rich possess,

all is indeed well. But if the object of the law is to bring to those who

are weary and in misery some hope of a new life and a new home where

children can be born without shame and the parties can live in accordance

with the wishes of themselves and their neighbours, then with all respect

to the Primate of England, the law is probably fulfilling its purpose very

damnably.

It is only fair, of course, to remember that the Archbishop of York and

his learned colleagues of the Minority Report never meet Fred and Jane and

George and Anna in real life, and can know no more about such folk at

first hand, and have as little chance of understanding their point of

view, as I have of studying and comprehending the sociological limitations

of the higher priesthood.

Detestable as I hold these ecclesiastical errors to be in their practical

bearing on the lives of the poor, I am hopeful that time and argument will

overcome the ecclesiastical veto on reform. I am sure that even a bishop

would be converted to healthier views of life if he could have a little

home chat with George and Anna. And if their pleading did not convince

him, I have a belief that the sight of their babies might touch the heart

which even in a bishop, we may suppose beats somewhere beneath the chimere

and rochet or whatever the vestments are called in which his lordship

disguises his human nature from the lower classes.

Many of our judges and other learned men see very clearly the enormous

importance of divorce reform to the poor. Mr. Justice Bargrave Deane put

the matter very straightly to the Commission when he said, "The question

of divorce is more a question for the poor than the rich. The rich have

their homes and their comforts and their friends who are of a different

position and who can by their own advice and conduct keep people

straight." In so far as this implies that the standard of morality or

etiquette of decent matrimonial conduct is stricter among the rich than

the poor, I doubt its truth. The working classes have no leisure for

flirtations and philandering. The behaviour of a fast set in a wealthy

country house--which is generally more vulgar than really naughty--would

probably scandalise the dwellers in a back street. But what the learned

judge wished to emphasise was that the consequences of ill-conduct in a

husband or wife are far more serious in the everyday life of the cottage

than in that of the mansion. Here he is undoubtedly right.

What, for instance, can be more terrible than the effect of persistent

drunkenness on the married life of the poor. Alfred and Anna have two

children. The man earns thirty-two shillings and sixpence a week when in

full work and is a thoroughly decent and respectable man. His wife is an

inebriate. She pawns everything for drink and neglects her children. Her

husband obtains a separation order, but after three years Anna promised

reform, and Alfred, like the good fellow he was, took her back.

Unfortunately in two months she was as bad as ever, and furniture,

bedding, clothes, all the household goods disappear to the pawnshop. The

children are reported upon by the school authorities. The parents are

prosecuted for neglect, and on Anna agreeing to go to an inebriates' home

for twelve months the bench postpone sentence. When she comes out she is a

wreck, suffering from alcoholic neuritis which is leading to paralysis.

During her absence Alfred has had to pay seven and six a week for her

maintenance. He now allows her five shillings a week and she lives with

her sister. He is on short time earning twenty-six shillings a week. The

children are without mother, the home is without a woman's care and

influence and his income is rendered insufficient to provide the

necessaries of life.

Here is another picture--John married Catharine in 1896. There was one

child. When the infant was nine months old Catharine was forced to leave

her husband on account of his drunken habits. The child went to its

grandmother and Catharine went to service for seven years. After that time

she met Charles, a widower, with one child. Being a brave and sensible

woman she went to live with him as his wife. They have two children of

their own now, one is three years old and the other six months. They have

a good home and are very happy, and would like to be married if the law

allowed it.

Now all that religion has to tell us about these cases is that marriages

are made in heaven and that heaven having once made these two utter messes

of human affairs, it is impious for human hands and minds to try and

mitigate the evil for which heaven is responsible. I wish those for whom

these old-world blasphemies have merely a folklore interest would leave

this so-called religion mumbling in its outer darkness and apply their

practical minds to so reforming the law that the lives of Alfred and Anna

and Catharine and Charles and their innocent babies, and hundreds of

other good men and women and innocent children, might no longer have to

live in this civilised country under any legal disability or under any

social shadow of ignominy or shame. In practice these folk very often do

marry again without the blessing of Church or State, as in the last-cited

case, and live useful and virtuous lives, bringing up happy children in

good homes. The law should assist such citizens in the interest of the

State, for the community want good homes and healthy children leading

happy lives.

The recommendation of the Majority Commission in this matter is a very

conservative one. It is that habitual drunkenness found incurable after

three years from a first order of separation should be a ground for

divorce. This, coupled with divorce for cruelty or desertion for three

years and upwards, would certainly cover some of the sadder cases that

were brought to the notice of the Commissioners.

The right of the State to refuse divorce in the case of the insanity of a

party to a marriage seems hardly arguable. Here is one of the many sad

stories. Norah married a soldier twenty years ago. Fourteen years ago he

was taken to an asylum, where he still is, and Norah applied for relief.

She was offered scrubbing work at the workhouse from 7 a.m. to 6 p.m. at

nine shillings a week and some bread, or two-and-six a week and six pounds

of bread, with liberty to take in two lodgers. Norah, to be with her

children, chose the latter. John was one of the lodgers. He found his way

to Norah's heart by buying presents of boots and clothing for the

children. And so Norah and John became man and wife, save and in so far as

the law refused them that status. As Norah told a lady visitor, "I suppose

you think it was wrong for me to drift into our present way of living, but

it was such a struggle and he was so good to us. I have never been killed

with wages, but we are as comfortable as we can be. I often wish we were

free to marry because we do not like our children being illegitimate, and

people look down on a woman so, if she lives as I am doing."

In this matter it is cheering to know that the archbishop and his learned

adherents in their Minority Report are prepared to make some concession. I

state this with pleasure, remembering the wise words of that good old

Welsh parson, the Rev. John Hopkins, of Rhoscolyn, who said, "Indeed,

Judge Parry, remember this, one must be charitable even to dissenters." _A

fortiori_ one should be just even to archbishops, and it is hopeful that

in the matter of insanity where one of the parties is either of unsound

mind at the time of the marriage or in a state of incipient mental

unsoundness which becomes definite after six months of marriage and the

suit is commenced within a year of marriage the Minority Report timidly

proposes that such a marriage might be annulled.

What the difference in principle may be between the cases of a mad husband

who has been married for six months and a madder husband who has been

married for six years the learned ones do not inform us, but we may

regard it as a sign of grace that there are some matrimonial miseries that

seem to these hard-hearted pundits worthy of sympathy and relief.

No protest seems to be made by the Church against the go-as-you-please

divorce methods of to-day among the upper classes, but if divorce by

consent does not exist among the rich it shows great rectitude and

self-denial on their part. One often reads of a case like the following

one. Mrs. A. is neglected by her husband, who leaves her. She asks him to

return and he refuses. She files a petition for restitution of conjugal

rights. The Court makes a fourteen days' order on the undefended petition.

I wonder if such an order has ever been obeyed or was ever intended to be

obeyed. On receiving the order Mr. A. writes that he is not coming back,

but that he will be found staying at a certain hotel with another lady

under the style of Mr. and Mrs. A. Inquiries are made, and this proving

true a divorce petition is filed. This again is undefended and the decree

_nisi_ goes as of course.

It is conceivable that such a procedure might be used by two intelligent

persons who did not respect the laws of their country as a method of

divorcing each other by consent, but I have no doubt that the well-to-do

who constantly go through these forms are far too scrupulous in their

observance of the letter and spirit of our divorce law to be guilty of

anything that could be construed into collusion.

I do not think that in this country, except among wild and fanatical folk

and some of the fast set with whom we need not concern ourselves, there

is any demand for divorce by mutual consent. But, even if this were

enacted, it does not follow, as Montaigne has told us, that it would be

used. The idea that a more reasonable system of divorce will lead to a

wholesale system of divorces is an absurd folly, a bogey used by ignorant

but honest clericals to frighten good people who rather enjoy being scared

to death. The fat boys of sociology love to make their victims' flesh

creep, and when they speak of divorce reform constantly suggest that human

nature tends to immorality in matrimonial affairs. As a matter of fact

human beings naturally prefer marriage and married life where it is at all

a successful institution to divorce and divorced life. This is wonderfully

illustrated in Belgium where, as M. Henri Mesnil, the French avocat,

points out, divorce law "as provided for by the Code Napoleon has remained

in force down to the present day: in spite of the long predominance of the

Catholic party dissolution of marriage by mutual consent is still possible

in that country. I might say that although possible it is a very rare

thing. I think only one case of divorce by mutual consent will be found

amongst four hundred cases in Belgium."

Here we have the results of a hundred years' experience of a European

country not unlike our own. It bears out exactly what one would expect,

and it is only by ignoring such evidence and referring to the laxity of

State procedure in America, without reminding the reader that there is no

evidence of any greater laxity in the state of morality there than

elsewhere, that the Archbishop of York and his friends can claim that the

"preponderating voice of history and experience"--a charming phrase--is in

favour of their Minority Report.

The archbishop treats history as Moses treated the rock. He strikes it

with his archiepiscopal staff and there flows forth a gush of watery

precedents to rejoice the hearts of the faithful. A poor pagan like myself

can only approach the rock with a humble geological hammer and, knocking a

few chips off it, report that it does not come of a water-bearing family.

Outside miraculous draughts of history there is nothing to be found in the

past experience of social life that tells against a reform of our present

divorce laws.

But no reform in the law will be of the least use to the poor unless

jurisdiction in divorce is given to the County Court. The opposition to

this is twofold. It comes from those who object to any reform at all and

see that by keeping divorce costly you naturally limit its use, and,

again, it comes with even greater force from those who are making their

money out of the present system. Very naturally the Divorce Court Bar,

having an excellent paying business all to themselves, do not want to

share it round with other people. Towards their trade union attitude of

mind I have every sympathy. But when it is more than hinted that it would

really be beyond the capacity of a County Court judge to try those "very

difficult considerations of cruelty, condonation and connivance," I prefer

the alliteration of the phrase to the sense of it. There is really no

mystery about divorce law. The issue is an absurdly simple one, of grave

importance to the lives of the parties certainly, but to a lawyer with a

business mind far easier to try than many of the issues that arise every

day in bankruptcy, Admiralty and commercial cases, and in arbitrations

under the Workmen's Compensation Act.

The daily work of a County Court judge is not less difficult than that of

his High Court brother. The complication of a case does not depend upon

the amount at stake, and the County Court judge has, if anything, to have

a somewhat wider knowledge of law and a far greater knowledge of the lives

of the poor than any other judicial person, since the legal subjects he

deals in are more varied in character than those met with in other Courts,

and he naturally sees more of the daily life of the people. Certainly the

High Court judges get better assistance from the Bar, or rather, I should

say, more assistance--or should it be assistance of greater length?--but

the County Court Bar of to-day contains the pick of the younger men, and

is really the nursery of the common law Bar since it is only in the County

Courts that a catholic experience in civil advocacy can be obtained. I

noted with some interest that in a recent batch of silks seven or eight

had been before me, some of them several times within a few months of

their taking silk.

When there is a divorce case of any importance--in the same way as if it

were a libel case of importance--great advocates with no special knowledge

of the mysteries of divorce law are called in to lead the specialists.

What is wanted is advocacy, not knowledge of divorce procedure, and the

County Courts have excellent advocates to-day. If there is one special

branch of law where one would think expert knowledge is essential it is

Admiralty, yet important Admiralty cases belong to County Court districts

where for aught anybody knows or cares the learned judge and the advocates

may not know the difference between a bowsprit and a rudder.

But the real reason why the County Court should be chosen for this work in

the interests of the poor is to my mind the real reason why the County

Court is popular with business men and the High Court is not. In a

properly managed County Court a case is set down for a certain day and,

except on rare occasions, it is tried on that day. As Mr. Dendy, the

learned registrar, pointed out to the Commission, "There's no doubt it is

of very great advantage to a poor man to know the day on which his case is

likely to be tried." It is indeed essential. The man himself and his

witnesses do not belong to a class who can spend leisured hours flitting

about Gothic corridors or waiting to be fetched from public-houses day by

day until their case is reached. Certainty of trial and reasonable speed

in reaching and disposing of the case are worth much more to business

people than abstruse technical knowledge or long experience of the habits

and manners of those who commit adultery. No one has more reverence than I

have for the views of Lord Alverstone, who thinks divorce jurisdiction

should not be given to County Courts, yet one must not forget that not

only is the opposite view supported by a large number of men and women who

know the wants of the poor very intimately, but experts, like Sir John

Macdonell and Sir George Lewis, both recognise that if you are going to

give a whole-hearted measure of reform with the intention of really

putting divorce at the disposal of the poor there is no other Court to

which these cases can honestly be sent.

Not only must this be done, but if we are to bring ourselves abreast of

what already exists in foreign countries we must do a great deal towards

cheapening the procedure even of the County Court for those who are poor.

The French have a very complete system of divorce for poor people, known

as "_Assistance Judicaire_." The effect is that the persons to whom

assistance is granted do not have to pay anything whilst they remain poor.

The State advances the necessary money. The _avocat_ and

_avoue_--barrister and solicitor--work for nothing. In case the assisted

person comes into better circumstances he may be obliged to repay the

State. If the poor litigant succeeds in his proceedings, the unsuccessful

party pays the costs. In 1907 there were 20,464 persons who applied for

assistance, 11,726 of which were in relation to matrimonial proceedings,

and relief was granted to 9,205 poor people, of whom 5,136 were seeking

different forms of matrimonial relief.

In Germany and the Netherlands divorce is equally open to poor people, who

receive State aid, and in Scotland there is a well-known system which is

known as the Poors Roll, which is said to have existed since 1424. The

Scots Parliament Act, which instituted this excellent procedure, commenced

as follows: "If there be any poor creature who for lack of skill or

expenses cannot nor may not follow his cause the King for the love of God

shall ordain the judge before whom the cause shall be determined to purvey

and get a leal and wise advocate to follow such poor creatures causes: and

if such causes be obtained [won] the wronger shall indemnify both the

party injured and the advocate's costs and travail." It is amazing to find

in Scotland of the fifteenth century laws for the poor that we are only

dimly thinking about in our vague uncertain timid way at the present day.

What actually happens to the poor man of the present day is set out in the

following case--a very common one:--

Summoned in the City of London Court for the non-payment of forty-five

pounds, his wife's costs in a divorce suit in which he was the successful

petitioner, a City messenger said that he received one hundred and

seventeen pounds a year, and while the divorce suit was pending he paid

his wife as alimony two pounds ten shillings a month. He had paid

sixty-five pounds for his wife's costs, and still owed forty-five pounds.

He had obtained an order for payment of his own costs against the

co-respondent, but as that person was only earning a few shillings a week

he did not know if he would get anything.

Judge Lumley Smith, K.C.: "Does a successful husband always have to pay

his wife's costs?"

Mr. Seyd (for the defendant): "Yes."

Judge Lumley Smith: "That is rather hard on him."

The defendant added that while the suit was pending he had to borrow fifty

pounds from his friends.

Judge Lumley Smith said a judgment debt must come in front of those of his

friends, and ordered payment of one pound a month.

This man could not have proceeded _in forma pauperis_, as by our then

system this was not open to anyone with more than thirty shillings a week

with no means above twenty-five pounds and clothing. If he had done so he

would have had neither counsel nor solicitor to plead his cause and the

only real benefit he would have obtained would be that he would not have

had to pay Court fees.

The self-respect of working men in many cases hinders them from applying

for assistance rendered nominally distasteful by the pauper taint. They

manage these things better in France, and what the poor want in England,

in fact as well as in name, is "assistance." The new rules that have come

into force this year go a little way to provide this, but it is too early

as yet to say how far they will meet the wants of the case.

There was no need for any Royal Commission on Divorce to explain to any

reasonably educated citizen what ought to be done, but I agree that the

labours of many good men and women have given chapter and verse for the

want and the remedy in a convenient form. Too much time was wasted over

the moot points of the theologians, for most citizens are agreed that

ecclesiastical opinions on the contract of matrimony as it affects the

State are of the same value and no more as ecclesiastical opinions would

be on such contracts as a bill of sale or a hire-purchase agreement, which

may equally from time to time affect adversely or otherwise the moral

conduct of human beings.

"Marriage is nothing but a civil contract. 'Tis true 'tis an ordinance of

God: so is every other contract: God commands me to keep it when I have

made it." Worthy John Selden did not mean by that that it was to be kept

for ever and in all circumstances, but that it was to be kept until such

time as the law released the parties from it in the same way as every

other civil contract. Nothing is more true and necessary to be repeated in

these days than the citizens' view of marriage law. Whatever codes

different religious men and women wish to observe they are free to follow.

But the marriage law is a question of citizenship for citizens to settle

for themselves. It is therefore satisfactory to read in the Majority

Report that English laymen seem generally to base their views, not upon

ecclesiastical tradition or sentiment, but upon general Christian

principles coupled with common-sense and experience of the needs of human

life. It is the conclusion of these men and women--not the anathemas of

priests--that want parliamentary attention. They have told us "that there

is necessity for reform in this country, both in procedure and in law, if

the serious grievances which at present exist are to be removed, and if

opportunities of obtaining justice are to be within the reach of the

poorer classes. So far from such reforms as we recommend tending to lower

the standard of morality and regard for the sanctity of the marriage tie,

we consider that reform is necessary in the interest of morality, as well

as in the interest of justice; and in the general interests of society and

the State."

When shall we find time to ease these heavy burdens of the poor and let

the oppressed go free?

CHAPTER VIII

FLAT-TRAPS AND THEIR VICTIMS

Will you walk into my parlour

Said the Spider to the Fly

'Tis the prettiest little parlour

You ever did espy.

The way into my parlour

Is up a winding stair,

And I have many curious things

To show you when you're there.

Will you? Won't you?

Will you? Won't you?

Walk in pretty Fly.

_Nursery Rhyme._

If we could remember half the wise saws and moral jingles that nurse and

granny taught us in the nursery and not forget to act upon them in after

life, what sensible citizens we should be! Some day there will be

cinematograph lectures to the young people just leaving the elementary

schools, exhibiting not only the real spider, but his many human

prototypes, who are lying in wait for the working-class man and woman at

every corner of their career. A nature lesson an the smaller tally-man

would be far more practical in a city school than a botany lecture on the

lesser celandine. Nevertheless, I doubt if it will do much good when it

comes about. Human beings are naturally divided into spiders and flies,

and of the two the latter really have the best of it. There is not much

fun to be had out of a cramped life in a dingy web counting your gains,

even if a white waistcoat and a gold chain conceal your evil conscience.

At least the fly buzzes round a bit and thinks he is seeing life before he

biffs into the web. And no one need care much about the gay young

sportsman bachelor variety--except perhaps his sweetheart, and she has a

lucky escape, poor thing! But the silly old married fly who gets caught in

the web and leaves a young wife and family starving at home, or, worse

still, the house-mother fly who rushes into the web just to look at the

spider's latest fashions which she knows her old bluebottle cannot

afford--these are sad cases.

Thomas Carlyle was mightily pleased with himself, I doubt not, when he hit

upon that phrase describing his fellow citizens as "The twenty-seven

millions, mostly fools." Those last two words are constantly in the mouth

of the odd fool in reference to the 26,999,999 other fellows. Still a long

life in the County Court compels me to the conclusion that the fool is not

extinct; he is, indeed, but too prevalent. Furthermore, the old world

saying, "that a fool and his money are soon parted," is, like many another

old proverb, a true saying.

These being the facts, why does the law side with the inappropriate knave

who preys upon the harmless necessary fool?

Scientific sociologists will no doubt tell me that if the law were to

protect the fool the effect would be to increase and multiply the breed of

fools, whereby the human race would become a bigger fool race than

already it is. To which my reply would be that the law as it now stands

makes the trade of knavery such a lucrative one that the business of it is

fast becoming overcrowded, and the best hope of the extinction of the

knave seems to lie in the fact that he will soon have to work nearly as

hard for his living as the honest man.

It is all very well to smile at the simplicity of the fool, and admire the

cunning of the knave, but let us remember that the poor fool has in each

generation to discover for himself that this is a world in which skimmed

milk is constantly masquerading as cream, and that faith in the honesty of

human nature in business affairs is in the poor man the first step on the

road to ruin.

I do not want the law to mollycoddle the fool and deprive him of the

birthright of an Englishman to make a fool of himself in his own way, but

I should like to see the law doing more to stamp out the knave,

especially--O, yes, especially--when he is a respectable, pious,

well-to-do knave clothed in broad cloth and a well-boiled shirt, tempting

the working man to part with his savings in the name of thrift and the

preparation for the rainy day.

What misery has been caused by well-advertised and wicked schemes of

investment introduced to the working man by lying promises garnished with

much prayer and psalm singing!

If a chartered accountant could make out a balance sheet of the losses of

the working class from frauds connected with building societies,

insurance schemes, house-purchase companies, and the like, from the days

of the Liberator onwards, what a terrible indictment it would be of the

way in which the law permits the rich knave to rob the poor fool! And yet

how few of the promoters of these schemes arrive at their proper

destination--the gaol.

We open our prison doors readily enough to the poor debtor, but the rich

man who lives on the stolen savings of the poor finds it as difficult to

enter the gates of the gaol in this world as he will to reach the wicket

gate in the hereafter.

Many societies have been formed under the Limited Liability Companies Acts

offering working men facilities for buying their own houses or obtaining

old age pensions or future lodgings in some glorious castle of Spain.

These have gathered in for years the savings of working men, and when the

directors were called upon to redeem their promises it was found that the

money had been spent in directors' salaries and commissions, and there was

no provision whatever for the policy-holders.

For as the law stands you may make nearly any wild promises you like, for

that is not the contract. The contract is the long-worded, obscure policy

which is sent to the workman later on. The gaudy booklet with its golden

promises and pretty pictures of villas with bow windows which the poor man

treasures up has nothing to do with the case.

Sentimental judges may try to find a way out; juries may give verdicts

returning the poor man his money; but all to no purpose. The law stands

firm for the solemn contract under the seal of the company, the policy

which the poor man has never read and could not understand if he did; and

the sleek directors chuckle at the angry working man, and with the

blessing of the Court of Appeal remind him in Shylock's own words:

Till thou canst rail the seal from off my bond,

Thou but offend'st thy lungs to speak so loud.

And certainly as the law stands it is necessary to have a Court of Appeal

stern and unbending in judgment to uphold the sacred nature of the

contract. The doubt in my somewhat sentimental mind is whether

transactions of this character between knaves and fools are in any

practical business sense really contracts at all; and if they are to be

deemed to be contracts whether power should not be given to Courts of

Justice to release the victims from the flat-traps in which they have been

snared, and give them at least some of their fur back again.

This has been attempted with the moneylender, but not at present with very

great success. For myself I have always thought that the moneylender, if

he be a real moneylender and not merely a fee-snatcher, is by no means the

worst setter of flat-traps. I have an uneasy feeling that if moneylenders

were Nonconformists or Churchmen, instead of being Jews, we should love

them better.

For if you get an actual sovereign from a moneylender you have at all

events got some concrete thing that you can exchange for food and drink

or clothing, and the token has an ascertained value; moreover, if you know

a little arithmetic you know what you are paying for it. But if you buy

clothing from a tally-man or a watch from a travelling jeweller, or a

walnut suite from an instalment furniture dealer, or a family Bible in

parts from an area tout, you can have no idea whatever of the value of the

thing purchased or the percentage of profit on the deal.

And, though I should like to see all this class of trading done away with,

and know that it causes great ruin and misery, yet to my mind the

moneylender and even the lower class of tally-men are angels of light

compared with the directors of insolvent collecting societies, who take

the savings of the thrifty poor on promises that any sensible person must

know to be incapable of performance.

As I have shown elsewhere, the bulk of the smaller flat-trap poachers

could be quietly exterminated by the abolition of imprisonment for debt.

That alone is the artificial manure which enables these social weeds to

flourish. Withhold it from them and they would wither and die, and the

world would be well rid of them.

If the man in the street could listen, as I have had to do for the last

twenty years, to tales of misery and wretchedness brought about by our

absurd credit system he would understand something of my impatience at its

continuance. I remember a small household that was ruined by a gramophone.

A poor woman, a widow, earned twelve shillings a week, and a son was doing

well at fifteen shillings a week. There were two little children. As

things go in their world they were well-to-do. The Devil, in the form of a

tout, came down the street one Saturday afternoon, with a beautiful

gramophone. It was only a shilling a week, and all that was to be done was

for mother and son "to sign just there at the bottom of the paper, and, of

course, if they did not want to keep it they could send it back."

However, later on, they found that they had signed to buy it; the boy fell

out of work, the case was put in Court, and judgment was entered against

both mother and son in default of appearance for two or three pounds. Then

the son enlisted and went to India, and I first heard of the case when

they brought the widow up on a judgment summons. I asked her why she had

signed the guarantee, and her reply was: "Tom was such a good lad and he

was in work, and he was that keen to have it I couldn't deny him." Anyone

who has ever been any kind of a father or mother will not cast a stone at

her for her folly.

That is one of the short and simple tales from the annals of imprisonment

for debt.

What match are confiding folk like these for the lying scallywags who tout

their inferior wares round the streets? And instead of our law remembering

that we pray daily to be delivered from temptation, and playing the part

of a father of the fatherless and a friend of the widows, it keeps alive

section 5 of the Debtors Act, 1869, in the interests of about as low a

class of knaves as ever disgraced the name of English trade.

I know very well that there are many good honest folk who approve of

imprisonment for debt and have fears about its abolition. These should

remember that in France and Germany and a great part of America there is

no such thing, and yet trade does not suffer and the working classes do

not starve. I should quite agree that if a man defrauds a tradesman by

lying promises or cheating he should be punished, but imprisonment should

be for fraud, not, as it is now, for poverty. As I have already pointed

out, in America no honest man is likely to get into prison merely for the

wickedness of owing money. We cannot say that is true here. In Germany the

working man lives on a cash basis. Credit is not largely given, as there

is no power of imprisonment for debt.

England is the last civilised country whose law encourages the poor to

live on credit, yet nothing is more true than this, that once start living

on credit and you cannot get out of it. It is a downward path leading to

the Slough of Despond. But until the law is amended we must be content to

look on and see the poor in the cages of prison whilst those that set the

traps and catch them wax fat and shine.

And as soon as a boy or a girl begins to earn wages the Evil One, in the

shape of some kind of tally-man, is at his or her elbow with a watch, or a

ring, or a family Bible, or a musical instrument, or a shoddy sewing

machine, the possession of which can be gloriously enjoyed on payment of

the first instalment. I do not say that boys and girls must not buy their

experience of the world and pay for it, but the law need not assist the

knave in making it more expensive than is necessary. I have known several

cases of young servants leaving good places and running off in terror

because they have been served with a blue paper, "frightener" with a lot

of law jargon about imprisonment upon it, threatening them with dire

penalties because an instalment was due on a gold ring. More might

certainly be done to prevent back-door trading, and there is no more

reason why area touts should be allowed to infest the streets than the

lower class of bookmakers. Well-to-do people have very little idea of the

number of firms that employ travelling canvassers and touts to hawk their

wares from door to door in the mean streets.

I remember once a fairly well-to-do working man--he was the doorkeeper of

a public institution in Manchester--had an action brought against him by a

street tout because his dog, an Airedale terrier, had bitten the prowling

fellow as he was coming in at the back door. The man was badly mauled, and

the dog having been proved to have bitten several other people of a like

nature, I had, much to my discontent, to give judgment for the plaintiff.

About a year afterwards--having forgotten all about the matter--I was

visiting the institution where the defendant was employed, when, as the

gentleman I wished to see was engaged, the doorkeeper asked me to step

into his lodge and sit down and wait.

"I've often wanted to see you, Mr. Porry," he began, "about that there

dorg case."

"What case was that?" I asked.

"That case where you fined me five pounds over an Airedale what tried to

gobble up a tally-man."

"I remember," I said doubtfully.

"Well," he continued, "you seemed to sympathise with me like, but you

found against me. You see I had bought that dorg for the very purpose of

keeping those fellows off the premises whilst I'm away. So I said if the

law don't let 'im bite 'em, what's the use of the dorg? and what I wanted

to arsk you was, may my dorg bite 'em within reason or did I 'ave to pay

five pounds 'cause 'e mauled 'im too much?"

I explained the law in relation to dogs and tally-men as well as I could,

and my friend was good enough to say when I had finished:

"Well, I quite see you 'ad to make me pay as the law stands, but it don't

seem to me just. If you can't 'ave a dorg, how can you keep them fellows

out of the house?"

That was more than I could answer. We parted friends--and there was, I

think, a mutual feeling between us that the law of dogs in relation to

tally-men was not all it should be.

And many laws that are made for the best purposes are wrested from their

beneficent uses by the wicked ones of the world and turned to the basest

advantages. No legislation was hailed with greater delight by social

reformers than the Married Women's Property Act, and yet one must admit

that the fraudulent use of its provisions is a commonplace. I am not

suggesting that it is mainly against the poor that it is misused, though I

have known of cases under the Workmen's Compensation Act where goods were

alleged to be "in the wife's name" after an award had been made against

the husband, and many a poor tradesman and small worker is swindled by

this allegation, the victim not having the money to test it in a court of

law, and the result being in any case so gloriously uncertain. I am sorry

to put matrimony among the flat-traps, but the use of the married status

among the dishonest to prevent a successful litigant from obtaining the

results of a judgment brings it within this category. Even the poorer

classes themselves are beginning to make use of it as a kind of homestead

law to protect their goods from execution.

Much as I am in favour of seeing the poor man's home protected to a larger

degree than it is at present I do not care to see it achieved at the

expense of the character of the occupants. Any law that is a constant

temptation to dishonesty is an evil, and there is no doubt that when the

day comes for legal reform on a large scale, the various questions

relating to the position of the married woman in the eye of the law will

have to be considered. In many cases, of course, the reforms will be

towards the enlargement of women's liberty, but in the matter of holding

property it is clear that where a wife or a husband is tacitly allowing

credit to be obtained on his or her appearance of property that property

should be available to discharge the debt notwithstanding that it is

claimed as the special property of one or the other.

Menander, the Greek poet, in one of his comedies makes someone say, "To

marry a wife, if we regard the truth, is an evil, but it is a necessary

evil." If this was true in 300 B.C. it became more convincingly the truth

in 1882 A.D., when the Married Women's Property Act became law, and the

"peculiar gift of heaven" was welcomed by the unscrupulous trader as a

statutory stay of execution. Since that day the Micawbers of this world

have put all their available assets "in the wife's name."

The legal privileges of the married woman are not sufficiently well known.

Like "the infant" she is, indeed, the darling of the law. What a fine

commercial spree an "infant" could have who looked older than his years

and had an elementary knowledge of the law of "infants"! Luckily they do

not teach anything useful at educational establishments, and the "infant"

never learns about his glorious legal status until it is too late to

exploit it.

But a married woman can, and does, have a real good time at the expense of

her own particular tyrant, man. Recently at Quarter Sessions a man was

accused of stealing the spoons, and his wife was accused of receiving the

property knowing it to have been stolen. But it was pointed out that it

was one of the rights of a married woman to receive whatever her husband

happened to bring home, and the judge directed an acquittal.

There are several pretty little distinctions in the criminal law in favour

of the married lady, but perhaps it is not seemly to advertise them

overmuch. When we come to so-called civil matters, the lady who does not

know and exercise her legal privileges is indeed a _rara avis_. How many

of the debt-collecting cases in the County Court are concerned with the

good lady who runs into debt with the tally-man or other tradesman to the

husband unknown? True, in many of these the husband has a possible

defence, but the good man is generally a sporting, careless fellow, and

pays his five shillings a month in the belief that debt is a natural

sequence of matrimony.

But when it comes to committing wrongs--or torts, to use the Norman slang

of the law--the married woman is the only legal personality that is

privileged to forget her duty to her neighbour at someone else's expense.

Her unhappy husband is always liable for the damages and costs, although

he may have done his best to hinder the wrong that has been done. If in

his absence on the daily round the good lady slanders her neighbour's

wife, or trespasses on her neighbour's garden to commit the further wrong

of slapping her neighbour's infant, the husband, for the purposes of

paying damages, is regarded by the law as being a joint offender. The law

supposes that a wife acts under her husband's directions. When they told

Mr. Bumble that, he replied in the immortal phrase, "If the law supposes

that, the law is a ass--a idiot. If that's the eye of the law, the law's a

bachelor; and the worst I wish the law is, that his eye may be opened by

experience--by experience."

It does seem a bit hard on the poor man certainly. If he keeps a dog the

animal may have his first bite at his neighbour free of expense, and when

he gets to hear about it he can send the dog away. But with a wife there

is no question of _scienter_. You may not suspect that your good lady is

given to slander, assault and such like indiscretions, but, if it so

happens, you have to pay. Nor do I see what steps you can take to hinder

the lady from trespasses which she has the mind to commit. For if you were

to place her under lock and key I believe a sentimental High Court judge

would grant her a _habeas corpus_ that she might go out again into the

wide, wide world and exercise her undoubted right of committing wrong at

her husband's expense.

And I set down these disadvantages of husbandry as some sort of excuse for

the meanness and dishonesty of the man who uses "his wife's name" to

protect his assets and injure his creditors. I have in my mind a

commercial married man auditing in his debit and credit mind the

matrimonial balance sheet. "See," he says, "my liabilities under the law

of husband and wife. Surely there must be some assets of the relationship

in which I am entitled to participate!" Then he studies the Married

Women's Property Act, and chuckles. Whether this is so or not, there is no

doubt that, since the Act of 1882, "Everybody's doing it," and when the

bailiffs come in the furniture and the stock-in-trade are always found to

be "in the wife's name." It is a form of conspiracy, you would say, and

the police should put a stop to it, but "Old Father Antic the Law" has

his answer for you there--a wife cannot be guilty of conspiracy with her

husband, for husband and wife are one.

There was a story illustrating the prevalence of this custom in the

precincts of Strangeways, Manchester. Mr. Isaacs, who had been absent from

business for some time, returned to his workshop looking pale and white

and very weak. A sympathetic neighbour put his head in at the door, and,

full of pity, said:

"Dear me, dear me, you look very ill, mine friend. Vot is the matter with

you?"

"Ach," groaned Isaacs, "I have had a terrible time, a shocking bad time."

"Vot vas it all about?"

"I vill tell you," replied Isaacs. "The veek before last two doctors came

to mine house and took avay mine appendix."

"Bah!" muttered his friend contemptuously. "I vonder at you. That vos all

you own fault: you should have put it in the vife's name. Then they could

not touch it."

The story might be told in a Scot's accent, or even a Welsh one for that

matter, and it would represent with equal truth the prevalent outlook of

mankind on the commercial advantages of matrimony. I by no means desire to

suggest that "the wife's name" is made a baser use of by the eastern

communities of Strangeways and Whitechapel than among the fair-haired

Saxons of Surbiton and Chorlton-cum-Hardy.

There are many people who see no wrong in doing what is within the law,

and there has always been a human tendency to score off one's brother man

by a smart trick since the days of Jacob and Esau. The fool will always be

outwitted by the discreet ones of the world, who justify their ways by

reminding us that we are only bound to obey the letter of the law, and

that there is no duty cast upon us to interpret and respect its spirit.

And simple charitable folk will say that after all things may really be

quite honest and straightforward, and it is only the stingy creditor who

sees fraud and the ungenerous judicial mind that finds in the constant

repetitions of a series of happenings an intention in the parties to whom

the events occur to wrong their neighbours.

For why should not John Smith put over the door of his shop "J. Smith,"

and how can the pleasant, careless fellow pay his debts in these bad

times, and why do those wholesale curmudgeons press for their money and

weary of John's winning smile and dangling tales of future payment? If

creditors won't wait it is really very foolish in these days to sue for

the money and put the bailiffs in. For friend John is away at the races

and when they come and seize the stock and effects of "J. Smith" there is

Mrs. Smith, dear, good lady, to whom of course everyone knows, or ought to

know, the business belongs.

Is not she a married woman? Cannot she trade in her own name? Is not her

name over the door--well, not her name exactly, but her initial--her full

name is Jane Smith--and as for her husband, he has never been anything

but a servant of hers, and now she is going to run the business herself!

In due course of evolution, no doubt, we shall breed this dishonesty out

of the race, or else the kind of poor, simple tradesman who gives credit

without inquiry will become extinct.

At present there are quite a number of people who regard laws not so much

as guides to good conduct, but as difficulties to be overcome in the

obstacle race of life. A learned king's counsel, a well-known expert in

bankruptcy and bills of sale, told me of an interview he had with a

secretary of a social society who came to ask him to deliver a lecture.

The secretary explained that their members were mostly cabinet makers and

small furniture dealers, and they had a meeting and a discussion every

month. The king's counsel agreed to come, and asked what sort of subject

they would like him to speak about.

"Well," said the secretary, "our president, Mr. X----, you may know

him----"

The king's counsel shook his head.

"Well, he has been bankrupt twice--I thought you might have met him. He

proposed a very good subject, and the committee were quite pleased with

it."

"And what did he suggest?"

"Well, seeing we are nearly all interested in the furniture trade, he

thought there would be a good turn up if you would come and lecture on the

Bills of Sale Acts and how to avoid them."

And I suppose a brainy man, with a good wife, and, what is almost as rare

nowadays, a good bill of sale, can live on nothing for about as long as it

can be done.

That candid poet, Arthur Hugh Clough, pointed out many years ago that the

ancient decalogue did not cover all our sinful modern ways, and amended

the eighth to run thus:

Thou shalt not steal; an empty feat

When it's so lucrative to cheat.