decent citizens of to-day? Should not a man or woman be made to trade in
his or her own name? In a business community it is almost impossible to
make adequate inquiries before you start trading, and why, if you come to
think of it, should an individual desire to trade in any but his own name?
The frauds that are committed may not be very serious, but all forms of
cheating and sharp dealing are detrimental to trade, and trade, after all,
is the basis of our national pre-eminence. It seems particularly
undesirable in a nation that prides itself on its domestic purity that
"the wife's name" should be a symbol of dishonesty. If we cannot attain to
a decent code of commercial morality without it we shall have to ask our
four-hundred-pound legislators for yet another statute. "One man, one
name, and make him trade in it," would be well received by all the honest,
rich and poor, throughout the country.
I have dealt at some length with this question of putting goods in the
wife's name because I doubt if folk whose business does not take them into
the County Court have any idea how prevalent it is and what a very
present help it is to the man who is living upon his neighbours by some
semi-fraudulent business. Every now and then the setter of flat-traps
catches a victim too strong and lusty to remain in the trap. The shoddy
gold watch is returned, the bogus business is thrown back on the
exploiter's hands, the company promoter who has annexed the savings of the
victim by false promises is sued for damages for deceit. In some of these
cases by pertinacity and the spending of more money a triumphant judgment
will be obtained by the fly against the spider. But there it ends. When
the high bailiff visits the web he is politely informed that it is part of
the wife's separate estate, every thread in the web is covered by a bill
of sale, and if you try to imprison the old spider for debt you would find
the greatest difficulty in proving his means to the satisfaction of the
Court. Bankruptcy has no terrors for the old fellow. You will probably
find that he has been there before and rather likes its old-world dusty
crannies and the peaceable formulae of its schedules and accounts.
No doubt it is very difficult to draft laws that the wicked cannot wrest
from their righteous purpose and use for iniquity. But the law plays into
the hands of the knave by its verbosity and diffuseness and the great mass
and complexity of it, which the knave studies with as great care and
astuteness as the lawyers and judges whose duty it is, within the four
corners of the law, to prevent his wrongdoing. When it is enacted "Thou
shalt not steal," the Court knows where it stands, but that is a far more
easy statute to construe than anything the parliamentary draftsman turns
out to-day. If we could get a short statute of one clause, "Thou shalt not
cheat," with an appropriate schedule containing a tariff of fines and
imprisonment, I think magistrates could do a good deal to cleanse the
cities of a great many low ruffians who make their living by swindling the
poor and make the law as it stands their attorney to collect the spoils.
CHAPTER IX
POVERTY AND PROCEDURE
Therefore I counsel you, ye rich, have pity on the poor.
Though ye be mighty at the law be ye meek in your deeds.
The same measure ye mete wrong or right
Ye shall be weighed therewith when ye go home.
* * * * *
To the poor the Courts are a maze if he plead there all his life,
Law is so lordly and loth to end his case;
Without money paid in presents Law listeneth to few.
PIERS PLOWMAN.
We have moved along a little since the days of Edward III., and if Piers
Plowman were with us to-day he would see no visions of "money paid in
presents" to State servants, at all events not to the judiciary. Bacon was
the last Lord Chancellor who indulged this evil habit, and if, as his
admirers tell us, he was at the time producing his own plays on sharing
terms with impecunious actors, one can understand the necessity of it
whilst condemning the practice. Although we have made justice pure enough
in this country and not directly purchasable, yet the rest of Piers
Plowman's indictment is true enough of the present time, and law is still
a maze wherein the rich are guided by the clever ones who know the way
and the poor too often get lost for want of an honest guide.
There are many signs that the public conscience is being slowly awakened
to the iniquity of one side in a law suit having all the legal aid that
money can buy and the other side nothing. In criminal cases something is
already done and a beginning is being made on the civil side in the High
Court to give the poor legal aid. These reforms do not amount to very much
as yet, but they are the first steps towards remedying Piers Plowman's
grievances and, considering that it is less than six hundred years since
that excellent visionary made his moan over the law and the poor, and the
drawback poverty has in the procedure of the Courts, there seems to have
been no very unusual delay in Government taking the matter up. We may at
least congratulate ourselves that we have got a scheme of some sort which
can be amended and put into a business shape instead of the Select
Commission which reformers are generally offered to keep them quiet. Old
Piers would be awfully happy--"bucked," I think, is the modern word--if he
could know that after five hundred and fifty years we were tackling the
problems of life that worried him so greatly. In another six hundred years
or so a lot of the little matters referred to in this book will get
smoothed out. If you can get into the habit of thinking of the world's
progress in centuries instead of months you will find it very comforting.
Until more is known of these new schemes and their workings we must write
of the present system as we know it, for any change in it will certainly
be slow enough and it is something to understand the circumstances of the
present in order to see what changes are really required.
You may remember that George Eliot in "The Mill on the Floss" describes
Mr. Tulliver as saying, "that in law the ends of justice could only be
achieved by employing a stronger knave to frustrate a weaker. Law was a
sort of cock-fight in which it was the business of injured honesty to get
a game bird with the best pluck and the strongest spurs."
I do not say for a moment that Mr. Tulliver was right, but I think George
Eliot shrewdly described in his words the attitude of mind of the man in
the street towards the High Court of Justice. Cock-fighting was always a
popular, cruel, and exciting sport, and now that it is done away with the
next best thing is to squeeze into the Divorce Court and witness a real
set-to between Chanticleer, K.C., and young Cockerel, who, they say, will
be taking silk himself very soon and will knock the older bird out of the
ring.
Certain it is that the poor have a notion, in which there is doubtless
some truth, that the fact that the other side had a better and more
expensive counsellor gave them a greater chance in the legal lottery. The
side that can put Carson on to bowl at one end and F. E. Smith at the
other must start at a better price than the side which has to rely on an
unknown amateur in the back row. Of course, A. N. Other may take some
wickets, but the public have a very business-like belief that money talks,
and that the verdict of the jury, like most of the verdicts in life, will
turn out to be on the side which can put in the field the most expensive
team.
Certainly I can say without hesitation that working men would never have
got their due from the Workmen's Compensation Acts if each particular poor
workman had had to fight for his rights at his own expense. It is to the
trade unions and their co-operative litigation that the thanks of the
workmen are due for preserving their rights under the Act.
Mr. Lysons was a Pendleton collier, and had only worked for a few days
when he received an injury. This happened in 1901, and at that time the
old Act said that no compensation could be recovered until a man had been
off work for two weeks. It was argued before me that this being so, unless
a man was employed for more than fourteen days he could not come within
the Act at all. The argument did not appeal to me, but it did to the Court
of Appeal, and later on again it did not to the House of Lords. So the man
got his money.
But the point of the case is that had not the union come forward to take
his case to the House of Lords, Lysons would have lost his compensation,
and the Act of Parliament would have been construed to limit the rights of
the poor for all time.
This particular case cost the union six hundred pounds to fight, and the
point in dispute was whether the injured man was, or was not, to receive
six shillings a week for five weeks. Several cases have run the same
course. The Act is obscurely drafted and capable of many interpretations.
Some of these that still stand on the books remain precedents only because
the workman has not money enough to carry the case higher and has no union
behind him.
And, though in the first instance a workman might often make shift to
state his case in the County Court himself and rely on his own advocacy as
to the facts and the judge's knowledge of the law, it is absurd to suppose
he could argue a legal point in the Court of Appeal or House of Lords
without assistance. Unless a trade union is ready to take up the case, the
only hope of a man getting his rights is through the aid of a speculative
solicitor.
Such a system has its drawbacks to the litigant and the profession, and
leads to unpleasant and undesirable incidents, but it is no use shutting
one's eyes to what is going on every day in every Court. Dodson and Fogg
have always been looked down upon ever since Sam Weller gave them away by
blurting out in Court that it was "a wery gen'rous thing of them to have
taken up the case on spec. and to charge nothing at all for costs unless
they got them out of Mr. Pickwick."
No doubt it is very unprofessional to make such an agreement, but with the
law as it is, and the poor with rights under the law, how on earth are
they to get their rights unless there is a speculative solicitor ready to
risk a certain amount of out-of-pockets in the hope of getting them back
with advantages from Mr. Pickwick? Unless a speculative solicitor is ready
to back the poor man's case with gratuitous services and money enough for
counsel's honorarium, surveyor's plans, doctor's and Treasury fees, how
can the case be launched at all?
Indeed, could one be certain that such a solicitor never undertook any
case unless he was satisfied that his client had right on his side, should
we not have to admit that the speculative solicitor was a ministering
angel engaged in a practice of delivering the poor that cried, and the
fatherless, and him that had none to help him?
And as day by day the poor have more laws made to guide them into the way
of righteousness, and more statutes are passed with the intention of
making the life of the poor healthier, brighter, and better, and as,
moreover, in this imperfect world the servants of the Evil One are always
prowling round to cheat the poor of their rights, it would seem to follow
that if Law Courts and litigation are to be the order of the day we must
each of us have a panel lawyer to whom we can go when we want an
injunction and our _habeas corpus_ is not up to the mark.
For years and years there have been speculative doctors. No one thought
any the worse of doctors because they founded hospitals and gave their
services free of charge and entered a _caveat_ against disease and death
without first getting something on account of costs. And why should not we
have legal hospitals and out-patient departments attached to the County
Court where the house physician is the young man who has taken the best
degrees in law and the visiting surgeon is the great leader of the legal
profession?
The idea is no more ludicrous in one profession than it is in another.
Medicine has its noble traditions of charity. Why should not lawyers set
an example of self-sacrifice and unselfishness? Or is there some subtle
essence in the law that of necessity destroys the favourable microbes that
promote peace and goodwill among men?
We of the long robe of the Inns of Court have always held in theory that
we were there to take on the protection of any and every suitor. Please do
not think when your attorney asks you for counsel's fees that you are
hiring him by that golden nexus of guineas. By no means. No barrister can
stoop to take wages or salary. What you are giving him is a mere gratuity,
"which a barrister cannot demand without doing wrong to his reputation."
And, that being so, one might expect some of the wealthier Templars to
take the ideal of their profession at its face value and set up to advise
and plead for the poor not only without wronging their reputation by
demanding a gratuity, but by refusing to accept one.
In a recent case much was said of the noble attitude of Barrister A., who,
being a political opponent of Barrister B., appeared for him when he had
got into trouble--I use the phrase in no technical sense. Correspondence
ensued, and some enthusiasts for the honour of the profession said that
every barrister was bound to take up a case if it was offered him. I
wonder what would happen if Lazarus went knocking at the doors of Crown
Office Row and Pump Court with a claim against Dives, but without a
gratuity in his hand? Would he get anyone to advise him on evidence or
settle the indorsement on his writ? One never knows.
The atmosphere of our Courts is not all that it should be. I do not refer
to the physical fog which pervades them, the smells of which the electric
fans blow about the building in the sacred name of ventilation, but the
moral atmosphere of our Courts always seems to me to suggest that the law
is an appanage of the rich. By all means let us have dignity, decorum, and
distinctive dress, but if you go into the High Court, although you may
hear the affairs of the poor dealt with sympathetically and in a just
spirit, the atmosphere of the Court is well-to-do and prosperous. Everyone
connected with the duties seems to belong to the upper middle class. There
is no place at all for the working man to play his part except on occasion
in the jury box.
And then, if the claim is the claim of a poor man against a rich man, a
special jury is empanelled and you get at a greater cost a tribunal of the
defendant's own class to hold the scales of justice. And though I firmly
believe that all do their best, and that speaking generally justice is
well administered, yet I can quite understand the feeling of a poor man
entering a Court of Justice and finding that the judge who lays down the
law, the jury who decide the facts, the advocates who argue the case, and
the solicitors who instruct the advocates are all drawn from a class of
the community which the working man rightly or wrongly believes to be
hostile to his outlook on life.
If I have not made myself clear, imagine yourself bringing an action
against a trade union, and finding when you came into court that a
well-known ex-Labour M.P. was on the bench, that the jury were chosen
entirely from the working classes, and that you were only allowed to be
represented by a next friend chosen from the ranks of a particular trade
union.
Would you, under circumstances of this kind, even if you were convinced of
the honesty and sincerity of every portion of the tribunal, feel that
sense of security in its right decision which is so essential in a
community where law should be respected?
And that this is a real trouble and that the Courts are aware of its
existence was shown in a recent judgment of Lord Sumner in the Court of
Appeal. A learned judge in the Court below in correctly directing the jury
as to the effect of the Trades Disputes Act had "added some remarks
pointedly expressed which were indirectly a criticism of the Act and
substantially a statement to the jury that a person who availed himself of
the defence afforded by the Act was setting up a dishonest defence." These
remarks Lord Sumner described as "inopportune, detrimental to the
defendant's case and, perhaps worst of all, irrelevant." He concluded with
quaint sarcasm: "A judge in charging a jury could never safely indulge in
irrelevant observations because he could not be sure that the jury would
be sufficiently logical to take no notice of them." I intend asking the
Office of Works to have that painted up on the walls of my Court. It is
worthy of letters of gold. Irrelevancy is certainly the worst of sins and
it is a natural vice in most of us only to be kept down by prayer and
fasting from the practice of it. We all dislike some Act of Parliament;
the Insurance Act, the Ground Game Act, the Finance Act--none is so
perfect that it has not some judicial enemies. And it is certainly very
tempting when you meet the fellow in Court to give him a bit of your mind.
But it must not be. The Legislature is our schoolmaster. Outside in the
playground and on vacation we can express our opinions about him freely,
but in school--No!
Lord Sumner is perfectly right and when he next speaks on this subject I
wish he would point out with authority that this human habit of
irrelevancy is the constitutional reason for maintaining the grand jury.
For centuries the King's Bench judges have worked off their natural
irrelevancy in charging the grand juries at assize towns to the great
benefit of themselves and the local papers. This national safeguard, this
barrier between judicial irrelevancy and the public at large, should not
be removed in a careless spirit. Our forefathers knew a thing or two. The
grand jury is really a sound instrument of constitutional mechanics. It is
the safety valve for the blowing off of judicial steam.
Lawyers and judges are certainly held in higher esteem to-day than they
were in the past. Gulliver describing the contemporary lawyers to his
friend and master, the Houyhnhnm says: "there was a society of men among
us, bred up from their youth in the act of proving, by words multiplied
for the purpose, that white is black, and black is white, according as
they are paid. To this society all the rest of the people are slaves. For
example, if my neighbour has a mind to my cow, he has a lawyer to prove
that he ought to have my cow from me. I must then hire another to defend
my right, it being against all rules of law that any man should be allowed
to speak for himself." In another passage he inveighs against judges in a
strain of even coarser invective. "Now your honour is to know," he says,
"that these judges are persons appointed to decide all controversies of
property, as well as for the trials of criminals, and picked out from the
most dexterous lawyers, who have grown old or lazy; and having been
biassed all their lives against truth and equity, lie under such a fatal
necessity of favouring fraud, perjury, and oppression, that I have known
some of them refuse a large bribe from the side where justice lay, rather
than injure the faculty, by doing anything unbecoming their nature or
their office."
Even in 1727 the extravagance and exaggerations of these passages must
have diminished the force of the satire, but one must remember that under
the old forms of procedure and law of evidence all sorts and conditions of
chicanery were possible, and the search after truth was clogged and
hampered by technicalities that made for injustice.
Crabbe, in "The Borough," draws a picture of Swallow, the lawyer, "a hard,
bad man who preyed upon the weak," but he had sufficient insight into the
reality of things to see that:
Law was design'd to keep a state of peace;
To punish robbery, that wrong might cease;
To be impregnable; a constant fort,
To which the weak and injured might resort.
And the main reason that the law in old days failed in a great measure to
carry out its mission to protect the poor was the extraordinary mystery
and obscurity of it. Where law is a jargon of technicalities foreign to
the business ideas of the people an immoral man who is a lawyer has an
easy task before him to defraud the weak. In our own time the worst frauds
committed by lawyers have been mortgage frauds where the deeds were
deposited with solicitors who converted them to their own use. Our land
transfer system is a relic of the past; it is a mystery that no plain
citizen can comprehend. It is necessary for him to employ a lawyer to
carry out the smallest transfer of land and it is necessary for him to
rely on the statement that the land has been conveyed to him and that the
title deeds are in order. The technical obscurity of the transaction opens
the door to frauds that would be impossible with a modern, businesslike,
public land transfer department.
And as technicalities in law and procedure were gradually abolished so we
find the pictures of lawyers in contemporary fiction becoming less
ignoble, though there will always be more romance in the story of a
fraudulent lawyer leading a double life than in the career of a blameless
practitioner who serves his clients honourably during office hours and
returns punctually to his accustomed suburb at the appointed dinner hour.
Though we have done away with much legal fiction and cumbrous technicality
we cannot greatly boast of the simplicity of our legal procedure. Take the
County Court Practice for instance. Here is a Court primarily designed to
adjudicate on the simple disputes of poor people. There are two practice
books. They cost over a guinea apiece, they consist of hundreds of pages
and are absolutely incomprehensible except to the trained lawyer. This
being so it is clear that the lawyer is as necessary to the poor man as he
is to the rich. It is a sign of grace in the matter of procedure that
whilst this chapter is in the writing we have some new rules issued about
giving poor people assistance in High Court actions. Up to now the
procedure _in forma pauperis_ has not been of practical benefit to the
poor except in enabling an occasional important appeal to reach the House
of Lords. It is too soon to say whether these new rules will meet their
object. Shortly, the scheme is that a poor person--meaning one who can
satisfy the judge that he is not worth fifty pounds--will have counsel and
solicitor assigned to him from a rota. After that his case will be
conducted free of costs or fees. If he succeeds the solicitor--but in no
case the counsel--will get costs.
Much depends of course on the spirit in which this is worked, but it only
refers to the High Court--which is not, speaking generally, the poor man's
Court--and it seems unlikely on the face of it that a scheme of this
kind, with no one in particular to look after it and advertise its
existence, will do away with the undesirable activity of the speculative
solicitor. One wishes it well, but except perhaps in relation to divorce
cases it does not appear on paper to be of great practical use.
The fact is that it is not a very hopeful thing to go to lawyers and
committees of lawyers for reforms unless you have the driving power of the
business man behind them. Nothing was to be more disastrous according to
legal prophecy than the institution of the Public Trustee. No reform has
done more to mitigate domestic worries and anxiety than this beneficent
institution. Lawyers and laymen nowadays concur in casting their troubles
upon him and sheltering themselves and their clients beneath his
protecting wing. If we are ever to have a proper system of legal advice
for the poor it will, I think, have to be made an official department with
a business head of affairs and attached lawyers. It might perhaps be added
to the duties of Labour Exchanges, but in any case it should be a
department of the Board of Trade, and it should have branches throughout
the country and power to help the poor in all the Courts of the country. A
device for suing _in forma pauperis_ working only in London, such as is
set up by the new rules, cannot be of much avail in tackling the problem
of placing legal advice and assistance at the call of the poor.
I wish some experiments of a voluntary nature could be made of a more
extended character than the poor man's lawyer societies that are attached
to University settlements, and do good work in advising the poor. It is
really in Court that a poor man wants assistance. I often think that a
poor man or woman coming into a Court for the first time is like the
average middle-class Englishman when he finds himself on Calais Pier
without a word of French speech at his command and entire ignorance of the
ways of the _douane_. How he clings to a friendly interpreter with a gold
band round his hat. How extravagantly he rewards him when he and all his
luggage are at length safely in the train.
And why should not we encourage an amateur legal interpreter in our County
Courts just as we welcome missionaries in our police Courts. I should like
to see practising in each Court an official friend of the poor, ready to
state the case of a poor man or woman who sought his assistance. There is
an existing section of the County Courts Act allowing a friend to appear
for anyone by leave of the judge if he does not do it for fee or reward,
and on that foundation something might be built.
I remember a clergyman, Father Gething, appearing for an old army
pensioner against an insurance society with complicated rules, and asking
to be allowed to address me, and conduct the old man's case. Sir William
Cobbett, not having in his mind for the moment the section I refer to,
objected. I asked Father Gething whether he was going to recover any "fee
or reward" for acting in the case.
"Certainly not," replied the reverend gentleman.
"But perhaps," I continued--somewhat mischievously--"Sir William is going
to contend that the word 'reward' in the statute means not only reward in
this world, but the next."
Sir William smiled and shook his head at me in dignified reproof. He was
not going to argue this, and with his very good will and assistance the
clergyman conducted the case, and in the end secured a victory.
In the Army Courts-Martial a prisoner is always allowed a friend to advise
him and to take a limited part in the proceedings, and I cannot help
thinking that long before the poor man has his panel lawyer voluntary
charity will be allowed to supply him with a "friend," who shall be
trained in the law, but ready to give his services to the poor without fee
or reward.
Many will think that the suggestions that I have sketched out of
assistance to poor people are chimerical and that in any case they are
likely to be costly and that the grievance, such as it is, is not worth
the money to be spent on the remedy. At one time I seem to be calling out
for no lawyers and here I am demanding more lawyers. The inconsistency is
only apparent. In all legal reforms I place in the forefront conciliation.
I want to see the French "preliminary of conciliation" applied without
delay to all small cases and I want the judge of the County Court to be
clothed with the duty of the French _juge de paix_, whose business it is,
in the first instance, to bring the parties together and get them to shake
hands. Only when that fails, or in those cases where litigation is
essential and necessary to the proper determination of a real dispute,
should I ask the State to assign counsel and solicitor to the poor. If a
poor man has an honest suit with a rich man it should be a point of honour
with the Courts to see that he is not at a disadvantage in their
procedure.
But merely providing a poor man with lawyers will not alone work the
miracle. Money must be found to pay his witnesses and prepare his case,
and this is even more necessary in civil cases than in the defence of
prisoners where, as we shall see when we come to consider criminal
matters, the State, whilst providing legal aid, has stopped short of
providing what may be still more necessary, financial assistance for
necessary evidence, some of which may be of an expert and expensive
character wholly out of reach of a poor man.
Piers Plowman naturally threw the whole blame on the lawyers who went
about, as he said:
Pleading the Law, for pennies and for pounds,
Unlocking their lips never for love of our Lord.
But I cannot for myself see why a lawyer or a doctor should work for
nothing any more than a business man or an author, and, if we knew the
truth, I expect we should find that old Piers himself invented his vision
as much in the blessed hope of royalties as "for the love of our Lord."
I do not want charity for the poor in our legal procedure, nor do I wish
to see litigation multiplied by cheap remedies. On the contrary, I want
every effort made to cut down litigation to a minimum, but when a lawsuit
takes place I want it to be a fair fight and no favour, with each side
equally well equipped for the fray.
CHAPTER X
CRIME AND PUNISHMENT
The penal laws of the British Empire are, by foreign writers, charged
with being too sanguinary in the cases of lesser offences. They hold
that the punishment of death ought to be inflicted only for crimes of
the highest magnitude; and philanthropists of our own nation have
accorded with their opinion. Such persons as have had no opportunity
of inquiring into the subject will hardly credit the assertion that
there are above one hundred and sixty offences punished by death, or,
as it is denominated, without benefit of clergy.
ANTHONY KNAPP and WILLIAM BALDWIN:
Preface to "The Newgate Calendar," 1824.
The progress we have made in the reform of criminal law in the last
hundred years is really remarkable. In very recent days we have at last
allowed the prisoner to give his evidence of the matter he is charged with
if he desires to do so. We have, under certain restricted conditions,
supplied him with legal assistance, and, best of all, there is at length a
Court of Criminal Appeal.
It is interesting and encouraging when your mind has a bent towards legal
reform to see how past reforms have come about. As recently as 1826
prisoners accused of felony were not allowed counsel, and the Rev. Sydney
Smith, who had a winning way of stating the case of the Law and the Poor
in his own day, was pleading in the _Edinburgh Review_ for a reform of
this matter. One would have thought then, as one often thinks now, that a
mere statement of the issue would have been sufficient. This is a picture
of things as they were. "There are seventy or eighty prisoners to be tried
for various offences at the Assizes who have lain in prison for some
months; and fifty of whom, perhaps, are of the lowest order of the people,
without friends in any better condition than themselves, and without one
single penny to employ in their defence. How are they to obtain witnesses?
No attorney can be employed--no subpoena can be taken out; the witnesses
are fifty miles off perhaps--totally uninstructed--living from hand to
mouth--utterly unable to give up their daily occupation to pay for their
journey, or for their support when arrived at the town of trial--and if
they could get there, not knowing where to go or what to do. It is
impossible but that a human being in such a helpless situation must be
found guilty; for as he cannot give evidence for himself, and has not a
penny to fetch those who can give it for him, any story told against him
must be taken for true (however false) since it is impossible for the poor
wretch to contradict it."
And yet, absurd as it seems to us to-day, the prisoner's right to counsel
was not obtained without a severe struggle. At the back of the mind of
those who opposed the reform was the idea that as prisoners were accused
by the Crown it was an act of disloyalty to defend them. Ridiculous as
that idea is it still exists in a form that is interesting only as showing
that the tradition was once a reality. A King's counsel has to obtain
leave from the authorities, and pay a small tribute therefore, before he
can appear for a prisoner and against the Crown. Leave is never refused,
but the existence of such a curious custom is only comprehensible by
studying the folklore of the subject.
A hundred years ago this folly sanctioned by antiquity was a reality. The
defenders of the position said it was really all done in the interests of
the prisoner. His witnesses were not put on oath, and this allowed them to
tell any falsehood they wished; he was saved the expense of his
counsel--as though he preferred economy to hanging--and the judge, he was
told, was his counsel--an arrangement that the prisoner cannot have been
very grateful for when he heard his counsel on the bench summing up to the
jury for a conviction. The nonsense that was talked and written on this
subject is encouraging to those who want things done to-day. Against all
reforms, arguments of this kind have to be listened to and laughed out of
Court, but to-day we are in a better position than Sydney Smith was, for
we often find in the official world a human being ready to help on a
reform when the time is ripe for it. In his day common-sense and common
humanity had not permeated into Government offices, "the Attorney-General
and the Solicitor-General for the time being always protesting against
each alteration and regularly and officially prophesying the utter
destruction of the whole jurisprudence of Great Britain." It was not until
ten years after the _Edinburgh Review_ article was written that
Parliament in August, 1836, passed an Act to permit prisoners charged with
felony the right to be defended by counsel. And yet there are many people
who think we move too fast in necessary reforms.
Sydney Smith mentions as one of the injustices to the prisoner his
inability to give evidence. This remained a disability until our own time
and was only removed with great difficulty and against the advice of many
learned lawyers. The folklore of the subject is quite entertaining. Our
ancestors considered, from introspective knowledge of themselves and their
neighbours, that no one with any interest in a dispute was likely to speak
the truth about it, they therefore did not allow the parties to a suit to
give any evidence at all. This was the old law in both civil and criminal
cases. Thus you may remember that in the great case of _Bardell_ v.
_Pickwick_ neither plaintiff nor defendant gives evidence, because in law
at that date they were not competent witnesses. The inconveniences of this
in civil matters was patent to everyone but the lawyers. Writing on the
incompetency of witnesses to give evidence, Bentham said with some humour,
"in the bosom of his family the lawyer by the force of good sense returns
to the simple method from which he is led astray at the bar by the folly
of his learning. No one is so deeply tainted with his judicial practice as
to apply its rules to his domestic affairs. If you would represent
madness--but a madness where all is melancholy and unintelligible--you
have only to imagine an English barrister carrying into ordinary life the
fictions, the rules, and the logic of the bar." Certainly we cannot
believe that when Sergeant Snubbin returned to his house and found a
dispute raging between his cook and his butler that he tried to find out
the truth about it without hearing what either of them had to say.
In 1846 when County Courts were established, the parties and their wives
were allowed to give evidence, and so obvious were the advantages of this
that in 1851 Lord Brougham passed the Evidence Amendment Act extending the
system to other Courts. The only thing that surprises us to-day is that
there could ever have been any question about the necessity of allowing
parties to give evidence if it was really desired that they should have
justice.
But we still clung to the right of the prisoner to keep his mouth shut,
and in our insular way boasted of his privilege. Thackeray is horrified by
the examination of the prisoner in the ordinary French way. "In England,
thank heaven, the law is more wise and merciful!" He sees in the French
Government advocate an official seeking in every way to draw confessions
from the prisoner to perplex and confound him and to do away with any
effect that his testimony might have on the jury, and he thanks heaven
openly that we should "never have acted as these Frenchmen have done."
What really troubled Thackeray's patriotic mind was the indecency of
asking the prisoner any question at all. Victorian Englishmen of all
grades were peculiarly proud of our criminal administration of justice and
considered the privilege of the prisoner to keep his mouth shut was the
keystone of the edifice.
Dickens approached the matter more hesitatingly: "I wonder," he writes,
"why I feel a glow of complacency in a court of justice, when I hear the
learned judges taking uncommon pains to prevent the prisoner from letting
out the truth. If the object of the trial be to discover the truth,
perhaps it might be as edifying to hear it even from the prisoner, as to
hear what is unquestionably not the truth from the prisoner's advocate. I
wonder why I say, in a flushed and rapturous manner, that it would be
'un-English' to examine the prisoner. I suppose that with common fairness
it would be next to impossible to confuse him unless he lied; and if he
did lie I suppose he could hardly be brought to confusion too soon."
This being the Victorian attitude in the matter it was hardly to be
wondered at that the reform was delayed until our own day. Yet I doubt if
anyone conversant with the criminal Courts would doubt that although there
are cases where it has been to the disadvantage of the guilty to go into
the witness box, it has been of enormous value to the innocent that he can
give his own account of things to the jury.
There are three recent Acts of criminal law reform which have done much to
safeguard the interests of innocent men, especially if they are poor.
These are the Criminal Evidence Act, 1898, the Poor Prisoners Defence Act,
1903, and the Court of Criminal Appeal Act, 1907. If we could have such an
outburst of legal reform every ten years in other subjects we should be
doing well. But it must not be thought that these reforms were obtained
without trouble. Each was strenuously fought, year by year, for many many
years before the energy and patience of the reformers were crowned with
success.
One would have thought that the claim of a citizen, charged with a
criminal offence, to give his account of the affair to the jury, if he
wished to do so, was one of those matters of elementary justice that could
hardly be contended against at the end of the nineteenth century, but the
fight against this privilege was really a very strenuous one. Twenty years
before the reform actually came the Bill had been read a second time in
the House of Commons by a majority of 109, showing, at all events, that
the lay mind of the country had no doubt about what should be done. In
each succeeding year, when any new offence was created by Act of
Parliament, there was a special clause put in to enable a prisoner to give
evidence, so that at length there were some thirty or more Acts giving a
prisoner the right to give evidence. This made the state of the law, as
Lord Herschell said, "utterly indefensible and ridiculous." We were living
under two competing systems, whose constant absurdities were made manifest
in the Courts; thus, if a man was charged with forging a trade mark he was
a competent witness, if he was charged with any other forgery his mouth
was closed.
Curiously enough, owing to the irony of our party system, it was the
Conservatives who brought in this reform and the Radicals who opposed it.
It was left for Sir Richard Webster to point to the progress of all the
States of America, and the experience of our Colonies, and to ask that we
should not lag behind in the good work of reform. That sturdy radical, Mr.
Pickersgill, was shocked, and elaborated the quaint argument that an
innocent man should be debarred this privilege lest he might be an
ignorant person who would tell lies, and get confused and muddled, thereby
prejudicing his chance of acquittal.
A large body of influential legal opinion was adverse to the Bill, and in
the division lists voting against the reform you find the names of Sam
Evans, John Morley, W. S. Robson, Lawson Walton, and other well-known
Liberals. It is one of the crosses that a legal reformer has to bear that
only through the services of one or other of the great parties in the
State can he hope to see his pet dream materialise and there seems a
certainty that, if one party is converted to a proposal, the other party
makes a point of being diverted by it. Over and above that unhappy
difficulty to progress there is the certainty that the lawyers, as a
profession, will always offer a strong opposition to any proposition of
legal reform, and, when this is defeated, will fight strenuous little
rearguard actions to cripple and delay it.
The Poor Prisoners Defence Act met with less opposition. It was a
comparatively small affair, and there were a few fees in it. Mr. Justice
Grantham--whose merits as a friend of the prisoner and a humane judge are
often lost sight of in remembering his daring dives from the bench into
the sea of politics--this good judge was a keen supporter of the movement
for the better defence of poor prisoners. He thought the magistrates ought
to ask the prisoner what his defence was, and tell him that, if he would
state it, they would do all they could to assist him in proving it, and
that, if he wanted evidence, they would adjourn the case and get evidence.
His ideal was that the magistrate and the police should assist a man to
prove his innocence, and that any sort of reasonable defence should be
followed up at the public expense.
The letter of the Act, however, only gives the poor prisoner a solicitor
and counsel and a copy of the depositions. No doubt the best is done for
him that can be under these conditions, but it is not the same quality of
legal defence that a rich prisoner can obtain for money. Naturally,
counsel who take these cases are not men of the greatest experience, and
the defending of prisoners is a difficult branch of the act of advocacy. A
story is told of a Scotch prisoner, who had economically pretended he was
without means in order to save counsel's fees, calling out in agony as he
heard his defender addressing the jury in a very unconvincing manner:
"Young mon, if ye'll sit doon at once I'll give ye a feeve poun' note."
Although the Act is not everything it might be, yet, undoubtedly, it is a
move in the right direction and capable, under sympathetic administration,
of doing much good.
The Criminal Appeal Act of 1907 has proved itself of such value already
that it becomes the more amazing to read of the difficulty experienced in
getting it on the Statute Book. All manner of legal interests were banded
together against it. One of the two learned king's counsel who moved its
rejection in the House of Commons solemnly declared that the cost of
taking shorthand notes and the expense of bringing a prisoner to London
from the north of England appalled him and, in his view, "the machinery of
the Bill must inevitably break down ... it was absolutely unworkable." The
second uttered mournful prophecies of ruin: "to substitute," he said,
"this most costly machinery for the present system would deprive our
criminal Courts of their principal glory in the deep sense of care,
caution, and responsibility which was pervading the atmosphere of every
criminal Court in the country at the present time."
Many people seemed to think that juries knowing there was an appeal would
take less pains and care in their duties. But a jury in a criminal case is
a body of citizens called together on a special and solemn occasion to do
a serious duty and the fact of appeal or no appeal would have little
effect on their conduct. It was the slackness of some of the judges rather
than the possible carelessness of juries that wanted looking to,
especially in Courts of country Quarter Sessions where the shorthand
writer and the Court of Criminal Appeal were bound to exercise a good
influence. Nothing tends to good judicial work more certainly than
publicity, a shorthand note, and a strong Court of Appeal easily
available.
Although the criminal law has in the main been fairly administered and
equally enforced against rich and poor there are certain classes of laws
which have often, no doubt from worthy motives, been used as engines of
oppression against the poor. Of these the Blasphemy Laws are a standing
example. Dr. Johnson tells us that: "Laws are formed by the manners and
exigencies of particular times and it is but accidental that they last
longer than their causes." This is not altogether true. The fact is we
have no summary machinery for removing decayed and obsolete laws from the
Statute book. We want a legal lethal chamber for these old die-hards,
these laws against Sabbath Breaking and Blasphemy and other old world
wickednesses. A rich man may break as many Sabbaths and blaspheme at his
will but he is never prosecuted for it. In the days of that great and good
reformer, Charles Bradlaugh, the Blasphemy Laws were made use of to stifle
the poor in the expression of their opinions in a very shameless way. Only
last year a man was imprisoned under them in circumstances which gave rise
to a good deal of uneasiness. He was no doubt an ill-mannered and
unpleasant person, but ill manners and unpleasantness are not crimes, and
to make use of these old Blasphemy Laws, to lock up the poor blasphemer
only, is one of those things that does extensive harm by giving the
blasphemer new fuel for his blasphemy, not only against the sacred things
he does not appreciate, but also against the law which he finds ready to
do injustice for the protection of these holy mysteries.
This again, like many of the things which we may reasonably complain
about in what is, as the world goes, a humane criminal law, is one of the
matters handed down by our forefathers which we have not had time to set
right. In the old days Unitarians and others were burned alive. Fuller in
his Church History says: it was found that "such burning of heretics much
startled common people, pitying all in pain and prone to asperse justice
itself with cruelty because of the novelty and hideousness of this
punishment.... Wherefore King James politickly preferred that heretics
hereafter, though condemned, should silently and privately waste
themselves in prison." And that is what all heretics ought to do to-day if
the law were equally administered, but as a matter of fact these laws are
only put in force against poor, noisy people who preach their doctrines in
the market place, and are a dead letter against those who preach the same
doctrines on hand-made paper bound in morocco. I can quite believe that a
bye-law to hinder one man saying coarse and ill-mannered things about
another man's religion in open spaces might be a reasonable police
proposition; but there must be free trade in these things and the
Established Church must not have a preference. Moreover, such a law must
not be extended to pulpits or printing presses or much interesting
theological polemics would be lost to us. For the Blasphemy Laws in the
twentieth century, protecting only one form of religion and set in motion
only against the poor, nothing can be said. Foul language and obscenity
can and are punishable in other ways, and the cause of religion is poorly
served by being protected by laws which are only set in motion when the
well-to-do are annoyed by the vulgarity and ill-manners of the poor.
There is no gainsaying that once in the dock all men are equal or very
nearly so, but one may harbour a suspicion whether all men have equal
opportunities of getting there. Theoretically, the dock, like the Bench
and the Cabinet and all other British institutions, is approached by an
ever open door; but in practice more goats wander through the opening than
sheep. Yet your sheep is a born trespasser. There are some who believe
that his immunity from punishment is due to the wool on his back.
I doubt if this is altogether true. Crimes of violence and brutality are
naturally the crimes of the less fortunate of mankind, and your sheep is
more peaceably disposed than your goat. But when we come to the more
modern crime of swindling we find that the criminal law is not very
successful in punishing the fraudulent well-to-do. Fraud is a more
complicated offence than larceny, and defrauders sometimes get the better
of the law. Cheating is not always a crime, and successful cheating is a
question of better education. That is why the rich so often keep out of
the dock. The law is somewhat old and decrepit, and the modern well-to-do
swindler is very much up to date. Therefore I fear it is as true to-day as
it was in the days of Lord Chief Justice Coke, to say that the law "maketh
a net to catch little birds and letteth the great ones go."
If you cast your eye down the police news you will many times come upon
the case of a low-down man or woman who goes round collecting for a
mission that does not exist, thereby cheating the well-disposed of a few
pounds or shillings. It is quite right they should be run in and sent to
prison. They are pests stealing money that would otherwise relieve real
distress.
But if they had had a little more money, and hired a house in some remote
place, and kept half-a-dozen real orphans there, and called it The St.
Anonymous Orphanage, they might have collected as many thousands a year as
they liked for their excellent charity, and no one would have worried them
by asking how the orphans were looked after, nor would anyone have wanted
to know how much was spent on the orphanage and how much on the founder
and his family, and their houses and carriages and furniture and upkeep.
The poor orphan has many uses in the world. One of them is to enable the
swindler to found orphanages and make his living thereby.
At first blush the crime seems the same as that of the house-to-house
cadger who gets six months, but note that the uneducated man has told a
lie and made a false pretence of an existing fact. The good Founder of St.
Anonymous's never did that. He had an orphanage with real orphans in it.
True, there were not very many of them, and the orphanage was rather a
stuffy, insanitary sort of place, though photographed on end it looks
imposing enough. And that is the _mot juste_, as the French have it; that
is what the orphanage was, and what the good founder was--imposing.
If you tell no actual fibs the law does not mind you imposing as much as
you like. You may transfer the savings of the working class into your
pockets by promises of the wildest character and schemes of the silliest
and most romantic sort, and if you do it successfully enough the nearest
you will ever get to the dock will be a seat on the borough bench, from
which altitude you may sentence the poor, mean criminal who never had any
capital, and had no one to advise him as to the law of false pretences.
This is not a fancy picture. There was at least one such a magistrate on
the bench once, and for aught I know there may be some J.P.'s to-day whose
wealth has been made by stealing the savings of the working classes within
the law.
Certainly in this country we have been free from the subordination of the
Criminal Courts to the power of gold that is said to exist in other
civilised places. Any preferential treatment that exists is of a class
character--snobbish if you will, but not corrupt. As an Irish barrister
said to me at Liverpool--he was a great Home Ruler with a grand hatred of
England and a real affection for many Englishmen: "My dear Parry, you'll
never convince me that the Government ever meant to hang Mrs. Maybrick.
They're a cowardly lot of snobs, and anyhow they couldn't hang a woman
they might have to meet out at dinner afterwards."
And there is undoubtedly running through all our English institutions,
even the administration of the criminal law, a certain amount of class
snobbery which it would be better should be eliminated. Judges and
magistrates are, of course, only human. The wrong doing of a man or woman
of our own class naturally appeals to our bump of forgiveness more readily
than that of a slum dweller whose temptations and environment we know
nothing about.
Thus we can remember cases where lady shoplifters were discovered by
eminent physicians to be suffering from some extraordinary form of
neurasthenia--not insanity, of course--but one of those nervous breakdowns
that made an acquittal and a rest cure in a nursing home the only
appropriate course. Magistrates seem to grasp the medical facts about
these well-to-do unfortunates almost too readily; but had it been a
drunken woman snatching a pair of boots from a shop-nail in the street no
eminent physician would have diagnosed her peculiar form of neurosis. Even
if her husband had tendered evidence that of late the poor lady had been
strange in her manner, he would scarcely have been listened to with much
sorrowful attention. The good magistrate would have felt bound in the
interests of the poor tradesman to make an example of this criminal. Such
cases are not cases for acquittal, and the rest cure is generally three
months hard.
There are certainly too many cases where the wealth and position of a
prisoner leads to favoured treatment in the Criminal Courts. I am glad to
note that these are always pilloried in the Press and publicity is given
to them, and in a way nothing could be better because it is the open door
that has done so much to keep our courts free from the taint of any
suspicion of real corruption. I firmly believe that when these cases do
occur they are generally the outcome of a spirit of humanity on the part
of the presiding judge coupled to a certain extent by a class feeling of
tenderness on account of the terrible downfall of a man or woman in his
own social position. Such cases, too, are rare. No special note is taken
of any case where the law takes its ordinary course and the rich criminal
is treated in the same way as his poorer brother. These are, of course,
the great majority, and there are also many cases I am glad to know where
leniency and mercy is extended to the poor criminal and he is helped by
societies and personal aid to regain his position among honest men.
But with all this the poor man can point to too many instances where rich
hooligans running amok with a motor car in Regent Street or assaulting the
police on a racecourse are let off with a fine. Here is a curious case
from the London Sessions that is bound to cause a lot of talk in the mean
streets. A fashionably dressed young man was indicted in an admittedly
false name, and was allowed to use it for the purpose of the proceedings,
and pleaded guilty. He had obtained a sable stole, value L40, from a
costumier in Shaftesbury Avenue by false pretences. He had opened an
account at Oxford. He received a cheque book and then withdrew his money
and closed the account. He used to obtain goods which he paid for with
cheques on the Oxford Bank, and cheques to the amount of L5,241 6_s._
3_d._ had been returned marked "no account." A detective said he was a
young man leading a fast life. The city police had a warrant for him for
obtaining a ring value L145 and a gold watch L15. These articles it is
true were returned. The Oxford police had a warrant out for him and when
arrested he was attempting to obtain a valuable fur article in Dover
Street. His counsel urged that his parents were people of respectability
and integrity who had suffered losses, and the young gentleman was trying
to keep things going in the same style he had been accustomed to, and had
come under bad influences. That is the whole story, and the report ends,
"the defendant was bound over, the magistrate remarking that there was no
need to cause his relatives to suffer by mentioning his name."
How many poor men and women whose children have been taken away from them
for long terms of years to a reformatory or sent to gaol for months with
hard labour, to the knowledge of all their neighbours, will read that
report, and what will they think and say of the justice of our criminal
law? One pities the parents and relatives of this particular young
criminal waster as one pities the parents of all children and the children
of all parents when one or the other bring disgrace or ignominy on the
home--but why is this one particularly undesirable swindler to be allowed
the privilege of an alias in an indictment, and why is his name alone
among all the prisoners arraigned at the Sessions to be kept from the
world? And how hard it will be on some youngster of like criminal
tendencies when he comes before a court where harsher methods prevail, and
he finds that not only is his name brutally noised abroad, but offences of
this character are deemed worthy of imprisonment.
One would not wish to say a word against leniency to the young however
much it may savour of class-tenderness, but the concealment of a
criminal's name on his trial because his parents are well-to-do and
respectable, is just one of those things that the poor people treasure up
and quote as an instance of the law's unfairness. At a time when every
effort should be made to impress on the poor the impartiality of the law
little cases of this kind, arising no doubt from motives of kindness and
humanity, are exaggerated and quoted as typical of our criminal
administration--which assuredly they are not.
In cases where the whole of the resources of the State are against the
prisoner fair play demands that everything that can be done for him
without detriment to the demands of justice should be done. In a case of
murder which created a great sensation this year, the whole evidence
turned on identity. Several witnesses came to the police and said they had
seen the victim, a child, in company of the prisoner. Other witnesses had
stated to the police that they had seen the victim in company with a
woman. During the examination of the police inspector in charge of the
case he was asked by the defence for these statements, the magistrate
expressed his opinion that they should be shown to the solicitor for the
defence, but the counsel for the Crown, a gentleman of very wide
experience, "suggested that the proper thing for the solicitor for the
defence to do would be to go and see the people."
I do not for a moment say that the learned counsel was inaccurate in his
statement of a legal proposition. It may be that such is the law; but if
it is what does it mean? The police have honest statements of citizens in
their hands suggesting that a man has committed murder, they have equally
honest statements from other witnesses that the murder has been committed
by a woman. However mistaken they may believe the latter statements to be,
surely fair play demands that the prisoner should have access to these
statements for what they are worth. After all he is at present to be
deemed an innocent man, he is not even committed for trial, and he is a
citizen with as much right to the protection of the police as any other.
If they have statements going to prove his innocence he ought to have
access to them and be told who has made them so that he and his solicitor
can see how far they help to prove his case. But no, that is not the
official view. Counsel for the Crown no doubt states it correctly. The
proper thing is for the solicitor for the defence to go about at the
expense of the poor man he is defending and find these people out and take
statements afresh. It is a denial of justice, the man has not the money to
do it, his solicitor is not a charitable institution, and even if he were
he probably has not money and staff for such work. In this particular case
the whole of the police had scoured London for evidence to clear up the
mystery. Surely when a citizen was charged with the offence public
interest demands that the matter that has been discovered that goes to
prove innocence should be as readily available as matter that goes to
prove guilt. The present practice is to my mind a tradition, handed down
from the bad old days, that needs to be swept away. We ought to free our
criminal law from any shred of suggestion that the State is out to obtain
a conviction rather than an acquittal. The State is only interested in the
truth and justice of the verdict, and a true verdict obtained by methods
of injustice is a crime against the community.
Much might be said on the inequality of punishments. The question of the
advisability of corporal punishment is one upon which people hold strong
and conflicting opinions. I am not a sentimentalist on this subject. I am
told by some quite sane and scientific thinkers that for men, women and
children of the hooligan class who have a mania for violence and
destruction it is probably the most appropriate form of punishment. Its
good qualities are that it is cheap; it is soon over, but irksome whilst
it lasts; and it is said to appeal to the homeopathic instincts of the
hooligan class who recognise the justice of meeting violence by violence.
Against these positive merits it is very unequal in its incidence; one
victim will suffer more than others over the same punishment; and it is
brutalising, in some measure, to the flogger and floggee. Too much may be
made of this last argument, for nothing can be more brutalising and
deadening to all hopeful and better instincts than long terms of
imprisonment.
On the whole, my instinct is against flogging, because I am an optimist
and believe that though it has had its uses in the past as an educative
influence we have come to a state of civilisation when we should abolish
if possible all violent or cruel punishments. There was a lot perhaps to
be said for thumbscrews in their day, but that day is admittedly over. My
grumble about the cat-of-nine-tails and the birch is not so much that the
law should put them in the cupboard once and for ever, but that if they
are to be used at all, their lashes should, like God's good rain, descend
on rich and poor alike.
Take the crimes for which flogging is permissible punishment to-day. For
adults there is garrotting, offences under the Criminal Law Amendment Act,
procuring, etc., and being an incorrigible rogue. For lads under sixteen,
stealing and malicious damage.
Now the first objection to these punishments is that whether flogging is
or is not to be administered depends altogether on the taste and fancy of
the presiding Judge. Some think it is an advisable form of punishment;
others view it with disfavour. This element of human lottery in the
administration of the law should surely be kept under as far as possible.
Out of a hundred and forty-five criminals convicted of robbery only three
were flogged. An intending robber therefore who studies judicial "form" in
the statistics will see that it is about fifty to one against the cat,
and if he is the one unfortunate surely he has a distinct grievance
against the forty-nine lucky blackguards who escape.
When only three criminals receive this punishment in one year it is worth
while considering whether it should be continued, or, if it is to be
continued, whether it should not be extended to crimes against women and
children and other nameless horrors. Highway robbers to-day are all of the
lowest and the poorest, but in the other category of crime there are
sometimes men of means who find their way into the dock.
If it ever comes to be recognised, as Butler in his beautifully prophetic
account of the land of Erewhon would have us believe, that crime is a
disease and should be treated by a family Straightener, as we now call in
the doctor, then all doubts as to corporal punishment will disappear. The
Erewhonians when they had lapsed from the path of honesty took, under
their doctor's advice, a flogging once a week and a diet of bread and
water for three months on end with the same heroism and resignation with
which we undergo a cure at Harrogate after a London season. Once recognise
that the birch rod is a cure for dishonesty, violence, and malicious
injury to property, then all sensible men and women afflicted with these
tendencies would welcome the cure and visit their Straightener as they now
visit their dentist.
But at present we are far from the realisation of these sane,
clear-sighted dreams. Flogging, as the law uses it as a punishment to-day,
is not used, I fear, merely as a remedy or even a deterrent but rather by
way of revenge. It is almost wholly used against the very poor and
degraded. Even under the White Slave Act, I cannot remember any case in
which it has been used against a well-to-do man. In any case it is only
available against the actual procurer and not against the landlords,
ground landlords, restaurant proprietors, and dressmakers, who knowingly
share in the woman's earnings and live on them.
Flogging may, or may not, be an advisable form of punishment, but if it is
to be used, let it be administered automatically and without fear or
favour to all beasts and blackmailers and hooligans, be they rich or poor.
At present the chances of a rich man being flogged for his wickedness on
earth are about the same as those of the camel with an ambition to loop
the needle.
CHAPTER XI
THE POLICE COURT
_Squeezum._ The laws are turnpikes, only made to stop people who walk
on foot and not to interrupt those who drive through them in their
coaches.
FIELDING: "The Coffee-house Politician."
Act II., Scene II.
When Fielding was made a magistrate for the county of Middlesex in 1748
the popular notion of the office was expressed in the nickname, "The
trading justice." He was paid by fees and had a direct interest in the
prosperity of crime. The fees, moreover, were very small, and it was a
recognised thing that he should make his office a lucrative one by methods
exemplified by Mr. Justice Squeezum in Fielding's farce. Although the
great writer fulfilled the duties of his office with honour, fidelity, and
zeal, he has left us in no doubt about the immorality and ignorance of
many of his fellow justices. It is a relief to turn from the justice room
in Bow Street in the eighteenth century with its rogues and vagabonds on
their way to the whipping posts of the Bridewell, and its highwaymen and
thieves starting for Tyburn by way of Newgate, and to look on the
comparatively civilised picture of a metropolitan police court of to-day.
A century and a half has worked wonderful reforms for us in the world of
police and police courts, but one cannot honestly say that nothing remains
to be done. Direct bribery is no doubt abolished, justice is fearlessly
administered, but there are still traditional methods of imposing fines
and imprisonment which cause the poor to think that carriage folk go more
easily along the turnpikes of the law than those humble ones who travel
perforce on foot.
I am not writing of the police court as the antechamber of the Old Bailey.
In relation to the grave crimes against society we may fairly boast that
rich and poor are treated much alike. But the police court in matters
within its own jurisdiction is a machine for teaching better manners to
the poor. It is a somewhat harsh machine, perhaps, but in the main just
and necessary at the present state of our evolution.
When folk are naughty and violent and ill-mannered and ultra-selfish, and
become a nuisance to their neighbours, the police, if they are poor, take
them in hand, but if they are rich they are dealt with differently. Unless
they are so extravagantly and absurdly naughty as to become a public as
opposed to a private nuisance, there is no necessity for the police to
tackle the rich. When two "lydies" go for each other in the gutters of
Whitechapel the police step in, but when the same thing happens in
Mayfair, society--with a big S--maintains its own discipline.
The reason why rich folk are not so outwardly naughty as poor folk is
very much a matter of education and environment. As Lord Haldane in his
valuable speech in America explained to us, there is a "system of habitual
or customary conduct, ethical rather than legal, which embraces all those
obligations of the citizen which it is 'bad form' or 'not the thing' to
disregard."
Thus in the days of Sir Anthony Absolute it was "bad form" not to get
drunk after dinner, and it was "not the thing" to refuse to fight a duel.
These laws of conduct were not enforceable before magistrates, but they
were laws all the same, and rich people dared not disobey them for fear of
being "cut" by society.
And as the years roll on better education, better housing, better wages,
and less of that repressive Sabbatarianism that drives the poorer
youngsters into natural mischief will make the police court less and less
necessary as a school of manners. The conscience and good manners of all
classes attain a higher ideal every day, and the only reason the rich
arrive at a better standard of outward manners than the generality of the
poor is that they have been caught young and made to practise at it for
generations. It is not a matter entitling them to praise, but we are out
to set down and discuss facts, and undoubtedly it is so.
For instance, you would expect an Eton boy to play better cricket than a
St. Andrews caddie, but the caddie would probably beat the other's head
off at golf. It is environment that does it, and the lesson to be learned
is to improve in every way the material surroundings of the poor to the
utmost of our ability. Meanwhile the police court seems to me as necessary
a part of our equipment as a sewage works or an ashpit.
Crime is not only a matter of heredity and education, it is also a
question of geography. This geographical distribution of crime is an
intensely interesting subject. You will find that Cardigan, for instance,
is the whitest county in England and Wales for crimes of all kind, whether
against property, morals, or of a violent character. Glamorgan, on the
other hand, is only beaten by Monmouth in records of crimes against
property; in crimes of violence Glamorgan is easily first; in crimes
against morality Glamorgan again is only beaten by Dorset, Berks, Lincoln
and Huntingdon, the latter taking the 1905-09 record very comfortably.
Monmouth, happily, in this latter class of crime is in a far better case
than her neighbour.
If you can trace the history and causes of different crimes in different
districts I believe you may hope to sterilise a county of certain crimes
by moral sanitation and stamp them out just as we have rid counties of
typhus and the plague. In dealing with uncivilised crimes of mischief and
destruction we should always bear in mind that the poor who do these acts
are very often only human beings who have not been cultivated up to modern
standards. Some crimes are traditional in certain districts, and the
imitative faculty being strong in criminals, heredity and mimicry work
together to cause a certain historicity in crime.
Magistrates and others do not sufficiently study this. Patriotic county
officials loudly deny what everyone who reads the Judicial Statistics
knows to be true. In discussing the Edalji case I pointed out that to
anyone who studied the history of crime it was far more likely that such
crime would be committed by a native of the county than by a gentleman of
Parsee descent. This seemed to annoy some ardent Staffordshire folk, but
there is no reason why it should. Killing and maiming the cattle of others
is a very ancient pursuit and has only recently been regarded as criminal.
The wicked man in the Bible was often threatened with the destruction of
his cattle. No doubt the righteous man was encouraged thereby to take upon
himself the duty of avenging his wrongs by destroying his wicked
neighbour's cattle, and the wicked neighbour, believing himself to be the
righteous one, retaliated in kind. Certain it is that in border countries
we always read of cattle raiding and killing and maiming, and perhaps one
reason why Staffordshire is old fashioned in the cattle-maiming business
is that it was a border country, and in the good old days the lords and
squires raided cattle and destroyed their neighbour's farms and
boundaries, and these antiquated habits remain with some as natural
instincts of revenge.
In early days such acts were not considered criminal. The only malicious
injury to property known to the English common law as a crime was arson.
It was not until the time of Henry VIII. (37 Hen. VIII., c. 6) that it was
discovered that there were "divers sundry malicious and curious persons,
being men of evil and perverse disposition and seduced by the instigation
of the devil, who, to damnify the king's true subjects went about burning
frames of timber ready to be set up and edified for houses," and broke
down dams and moats or cut away lead pipes, or barked apple trees, or cut
out beasts' tongues, which seems a very ancient and horrible form of
maiming cattle. The penalty for these latter offences was the inadequate
fine of ten pounds.
In 1722 came the Black Act which made it felony without benefit of clergy
to "unlawfully or maliciously kill, maim, or wound any cattle." In 1861 a
Malicious Damage Act (24 & 25 Vict. c. 97) was passed, codifying all the
law relating to such offences, and that is the Act under which Mr. Edalji
was indicted.
I have worked out the geographical statistics of cattle maiming in England
for forty years, from 1861 to 1900, and they are extremely interesting. In
the first place it is well to know that the total number of such crimes is
rapidly decreasing. In five years, from 1865 there were over a hundred
cases; in five years prior to 1900 there were less than fifty. The
counties, which total more than twenty cases each, are York, Sussex,
Middlesex, Lincoln, Lancashire and Staffordshire. Somerset and Gloucester
have nineteen cases, but Gloucester has only one case since 1882 and
Somerset only six cases since 1870. Surrey has only eleven cases, and only
five occur since 1870. Anglesey and Westmoreland have only one such
charge each during the whole forty years. In the case of Staffordshire, in
the twenty-two cases taking place from 1861 to 1900 fifteen cases had
taken place since 1877, and there is never a clear five years in the
period without a case.
In 1903, when the Wyrley outrages took place, it seems to me that a county
with this history would have been sensible to look at home for the
criminal. In counties such as Somerset and Surrey, where the offence
seemed then to be dying out, the same considerations would not apply.
Whereas in Westmoreland or Anglesey the expectation would be that the
crime was committed by a stranger. I do not think it would be wise to
press these speculations too far, but at the same time I think magistrates
and police might make greater use of the wonderful statistics that are
collected and published by the State at such great expense and learn
useful lessons from them in their daily business.
Whilst we condemn the horrible savagery of such crimes it is only fair to
remember that the law does not punish them for their cruelty, but only for
their injury to property. Prevention of cruelty to animals is a far more
modern branch of law, the beginning of which dates from 1822. When Lord
Erskine moved his Bill against Cruelty to Animals in 1811, so absurdly
sentimental did it seem to the assembled peers that they drowned his
speech in a chorus of cat-calls and cock-crowing. It is well to remember
when measuring punishment in the police courts that there are individuals
and classes existing to-day that are scarcely more civilised than the
lords and barons of a hundred years ago.
The feudal lords and their henchmen did many things in the good old days
in their quarrels with their neighbours which to-day would bring them
before the justices. They wounded with intent, they did grievous bodily
harm to anyone who annoyed them, and they did as much malicious damage to
property as seemed in their own eyes a fair set off for insults had and
received. Among a certain small degraded class in our own country these
traditional pleasantries of the country-side are not fully recognised to
be crimes. There are a set of men among whom it is not "bad form" to
commit these acts. This form of atavism requires not only pity but further
and better repression at the hands of capable police.
As long, therefore, as we have these hereditary tendencies to crimes of
violence and selfishness, the police court seems to me to meet a felt
want. I can imagine a better world without any police court, just as I can
imagine this world with a better police court.
But I should like to see imprisonment kept entirely for evil-doers, and
that side of the police court work which consists in rate collecting and
semi-civil proceedings transferred elsewhere. At present many are sent to
gaol in the police court for the crime of poverty. In the cases of
non-payment of rates or of orders on parents to pay subscriptions to
industrial homes it seems a very bad policy to send a poor man to prison.
It takes a man from work, it does not produce money, and it throws a
family into the workhouse.
In these cases there is no pretence of proving a man's means and sending
him to gaol because he can pay and won't. No such evidence is necessary.
The man goes to prison because he is poor and has not the money to pay. If
the State thinks fit to put a man's child in a reformatory, one would
think it might stand the expense of it, without ruining the home by
imprisoning the father because he cannot subscribe towards his keep.
With regard to orders for maintaining a separated wife, or affiliation
orders, everyone would have less sympathy with the man who is sent to
prison for not paying these. But if a man has not the money he does not
make any in prison, and what these poor women want is regular weekly
money.
These are special cases in which I think power to attach a man's wages up
to a certain percentage would be a just and reasonable proposition. Such a
law might be unpopular with mankind, but it seems fair to the women.
Whether it would tend to increase or decrease maintenance and bastardy
orders I have not the least idea.
"Five shillings and costs or seven days." This familiar phrase, as Count
Smorltork says, "surprises by himself" the whole philosophy of police
courts. Nothing is more marked in the treatment of rich and poor in the
police court than the unfair incidence of fines. Take, for instance, the
common case of a motor-car driver being fined forty shillings and costs
for exceeding the speed limit and driving to the danger of mankind. If
his master is a Cabinet Minister, say, he writes a civil letter to the
clerk to the magistrates expressing his regret and enclosing the needful,
which is just two five-thousandths of his official income.
But supposing he is a taxi-cab driver who owns his cab, or is buying it on
the hire system, as many do. He, too, is fined forty shillings and costs,
and as he earns, let us say, forty shillings a week, he has to pay one
fifty-second of his income.
If he cannot raise the money his home is distrained on, or there is the
option of imprisonment. That kind of option never worries the Cabinet
Minister or the chauffeur thereof. In the old tithe days the parson took
his tenth from rich and poor alike, and was no respecter of persons; all
he wanted was one-tenth of your income in cash. As between Cabinet
Minister and cabman the relation of fine should be as two pounds to
ninepence--that is to say, if the law in the police courts desires to
treat rich and poor alike.
There is no difficulty about doing this. All that is wanted is to enact in
your statute that the fine should "not exceed one-fiftieth or one
one-thousandth of a man's income." Then all would be fined off the same
mark. At present the poor man is the scratch man, and the greater the
wealth the longer the handicap.
As to costs, they should be wholly abolished. They are not only an odious
tax on the poor, but they give the officials of the court an unholy
incentive to make the court a paying concern, and, what is worse, give
every clerk and officer in the police court a direct pecuniary interest in
convictions. As things stand to-day a council of city men are not likely
to advance salaries where their police court is losing money. A godly and
righteous police court should glory in losing money year by year.
And whilst I recognise that at the head of each police court there should
be a stipendiary to deal with the more important cases, and always to be
within call when there are cases to try in which the local magistrates
have a class interest, yet I have no desire to abolish Dogberry, nor do I
take any pleasure in reading that he has written himself down an ass. In
our chief cities there are now excellent stipendiaries and magistrates of
all classes, including representatives of working men, and all can testify
how--taking the police court system as it stands--it is worked fairly and
carefully and to the advantage of all.
But these places are far ahead of the county towns and districts where the
squire and parson reign supreme, and the clerk to the justices is their
own faithful attorney. I believe thoroughly that these men do their best,
but it is quite impossible that they can take a normal view of such
horrible crimes as the rape of a pheasant's egg or the snaring of a hare.
It is from the beautiful little corners of the lovely English country that
the bitter cry of injustice in the police courts makes itself heard from
time to time in the public Press. Why should not every hamlet have its
Village Plowden to brighten life on the country side?
There we see, let us hope, the last of a decaying and rotten
system--justice administered by a class unlearned in law, and unlearned in
a far more important branch of their business--the knowledge of the works
and days and temptations of the fellow sinners whose judges they have
elected themselves to be. In the remote country places more than anywhere
is the stipendiary a necessity. Meanwhile, why should not direct
representatives of the agricultural labourer be placed upon the bench if
we are not to abolish Dogberry altogether?
While these words are being written, an effort is being made with a
Criminal Administration Bill to do away with some of the abuses of the
police court. The imprisonment of people for non-payment of fines is
really imprisonment for poverty, and the scandal of it is at last
officially recognised and the necessity of reform admitted. That, at all
events, is to the good, though it is to be hoped that if the Bill at
present put forward is to pass it will be widely extended and simplified.
It is quite a good thing to enact that it shall be obligatory upon
magistrates to grant time for the payment of fines, but seeing that the
magistrates have always had this power and never used it to any useful
extent it would be well that there should be less discretion about the
matter. Law for lay magistrates should be automatic and fool-proof. When
you enact that a magistrate is obliged to allow time for payment of fines,
"unless the Court for any other special reason expressly directs that no
time shall be allowed," you are surely inviting the average justice to
supply himself with special reasons why he should not carry out a law
which you know by his past history he dislikes. It must not be forgotten
that in Manchester, although the fees legally allowed for a summons are
twelve shillings, the practice has been for fees not to exceed the fine.
Imprisonment for less than five days--which in the future is not to be
permitted--has for a long time not been allowed by the practice of the
Manchester justices. Where justices desire to be lenient and enforce the
law temperately they can do so to-day, and therefore it is clearly no use
in a new statute to leave a discretion to those who will certainly abide
by old and evil customs unless they are forced to do otherwise.
The statistics of the police courts show that in one year 92,000 citizens
were imprisoned in default of the payment of a fine and 80,000 imprisoned
without the option. The number of persons sentenced to pay fines is no
less than 460,000. Every year new statutes are passed making new offences
which can be committed with practical impunity by those whose purses are
long enough. Under the heading Betting and Gaming, 3,346 persons were
fined and only 738 went to prison. Under the heading Motor Cars, 10,631
were fined and only 36 went to prison in default; under the heading Sunday
Trading, 6,654 were fined and only 12 went to prison by default. These
offences are generally committed by persons with some money; but where the
parties are poor what a terrible difference in their punishment. The mere
giving of time to pay fines will not abolish this injustice unless the
fines are made, as has been suggested, in some ratio proportionate to a
man's income. If it were enacted that a fine should not exceed a day's
wage earned by the prisoner, that would be a method of doing away with the
burden of useless imprisonment that has to be borne by the poor. It is no
use enacting that the Court in fining an offender shall take into
consideration the means of the offender. I make no doubt that this is done
already to a large extent by stipendiaries and the more enlightened
magistrates. What is wanted is an actual printed tariff of fines fairly
proportioned to the means of the offender, beyond which the magistrates
may not go. Measures that depend on the sympathetic working by the members
of the bench will be in many districts a dead letter, and inasmuch as the
folk who go to prison in these cases are always poor people, very little
will be known of their trouble except by those few persons who study blue
books and statistics.
This habit of the magistracy to ignore the good intentions of Parliament
and the Home Office is in nothing more marked than in the refusal of many
country benches to give bail to poor people charged with offences that
have to be tried at Sessions or Assizes. Many judges have called the Grand
Juries' attention to the large number of prisoners who are left in prison
awaiting trial, some of whom are ultimately acquitted. But this is one of
the matters where magistrates must of necessity have discretion, and
although they receive Home Office circulars calling attention to their
duties in the matter of bail they prefer to go their own wrong-headed way
and unnecessarily keep a large number of poor persons in prison who might
quite safely be allowed to remain out on bail.
It is curious how history repeats itself and how a lay magistracy, as a
type, always tends to act without sympathy or consideration for the poor.
A hundred years ago the Yorkshire magistrates came to the conclusion that
it was a most improper thing that poor people committed for trial to the
House of Correction should be allowed to idle their time away at the
expense of the county, so they actually required them to work for their
living, and as the treadmill was the only apparatus of a commercial
character in the gaol the poor untried prisoner was put to walking round a
wheel in company of his convicted brother. The way in which the matter was
put by Mr. John Headlam, M.A., Chairman of the Quarter Sessions for the
North Riding of the County of York, is a perfect specimen of the true
Dogberry temperament: "With respect to those sentenced to labour as a
punishment, I apprehend, there is no difference of opinion. All are agreed
that it is a great defect in any prison where such convicts are
unemployed. But as to all other prisoners, whether debtors, persons
committed for trial, or convicts not sentenced to hard labour, if they
have no means of subsisting themselves, and must, if discharged, either
labour for their livelihood or apply for parochial relief; it seems unfair
to society at large, and especially to those who maintain themselves by
honest industry, that those who, by offending the laws, have subjected
themselves to imprisonment, should be lodged and clothed and fed, without
being called upon for the same exertions which others have to use to
obtain such advantages."
Of course the whole question is begged when an untried prisoner is called
an offender against the laws. The Headlam view of him always has been, and
is to-day, that the mere fact that a policeman has arrested him is proof
that he is an offender; this for all time has been justices' law, but it
is doubtful whether the old doctrine that a man is to be deemed innocent
until found guilty by a jury of his peers is not still sound law and ought
not to be more fully recognised by the lay magistrates.
Of course the particular wrong that Mr. Headlam was contending for has
long been abolished, not indeed without much argument and trouble, but we
still punish an untried man by imprisoning him before trial, and in very
many cases this is wholly unnecessary. The idea of keeping a man in prison
is that he should be forthcoming on the day of trial. In some serious
cases it is obviously necessary to keep a man in custody, but in many
small cases if a cheap bail was fixed there would be no difficulty in
finding the sureties and the prisoner could be outside arranging for his
defence and earning money for the support of his family until the day of
the trial.
Of 598 people acquitted at Assize Courts only 294 were allowed bail, so
that there is a clear admission in the official figures of three hundred
innocent persons--or persons not provably guilty--remaining in prison
because the justices will not carry out the Home Office suggestions as to
bail. Remember too that in some remote places there are very few assizes
and eighteen of these unhappy persons remained over three months in prison
awaiting trial. At Quarter Sessions the figures are even more remarkable.
Of 1,586 prisoners acquitted only 688 had been granted bail. Here you have
a large number of innocent men and women kept in gaol charged with
offences that are not of the most serious character, and this is done not
because in this peculiar instance the law itself is harsh--because the law
permits bail and the government office calls on the magistrates to make
use of the law--but because the law is administered by well-meaning but
incompetent men who have a fixed delusion, handed down to them from their
forbears of hundreds of years ago, that a man arrested for a crime by the
police and awaiting trial is, to use Mr. Headlam's phrase, "an offender
against the laws." Where there are no stipendiary magistrates it would not
be a bad plan to give any prisoner a right to appeal on refusal of bail to
a judge of the County Court who lives within the district and is of
necessity a magistrate though he seldom has much time to sit at petty
sessions.
Before we leave the Police Court I should like to draw attention to a
well-founded complaint against police methods that the Home Office might
certainly take into their consideration when they are reforming the
administration of the criminal law. I refer to the practice of
identification which has come so prominently before public notice in
recent criminal trials. I never met a prisoner who felt that it was fairly
done. For myself, I have the firmest belief that the police endeavour as a
rule to do what is right and straight, but after all we must not lose
sight of the fact that the police are there to clear up the crime and to
run in somebody--the real criminal of course for choice--and it seems
hardly right to put them at this very critical moment into the position of
a judicial authority deciding the most important point for or against the
man they have arrested and believe to be guilty.
I have always wondered what legal right a policeman has to put you in a
row with a lot of other men and bring people to look at you. Suppose a
prisoner refused to undergo the ordeal and the policeman used force to
compel him, could the prisoner recover damages for assault. These are
recondite, and in a sense absurd points; but they do, I think, help one to
see how wrong the present system is. At the ceremony of identification it
is obviously necessary that there should be a presiding magistrate to see
fair play and to take a record of what happened. It is really a part of
the trial and a most important part of the trial. That a witness should
identify a prisoner in a police yard in the absence of a judicial
authority is clearly an unjust thing. Once he--or more especially she--has
done so, the further swearing to the prisoner when he is in the dock is
nothing. What the magistrate ought to see is the demeanour of the
identifier when he first recognises the prisoner and especially ought a
justice to be present to see that there is no suspicion of unfairness in
the methods employed by the police.
We have had so many tragedies brought about by so-called identification,
that it is more than time that the business of it was taken out of the
hands of the police and made an integral part of the trial before the
magistrate to which it in truth belongs. These reforms will not, I think,
come about until we have stipendiary magistrates on the county benches,
but though I wish to see this I do not want the old office of Justice of
the Peace to be abolished. There is, and rightly ought to be, a keen
desire among laymen to attain to this position, and it is an office of
much dignity and respect and one in which a good man under sound legal
advice can do worthy public service. I have been a local justice of the
peace for many years and can testify to the number of occasions upon which
a magistrate residing in his district is called upon for small services
that would cost the applicant time and money if there was no available
magistrate.
A great many lay benches with a clerk of sound learning and legal
education administer excellent justice throughout the country. But there
are classes of cases connected with property that would be better tried by
a stipendiary unconnected with county society. I have a passion for
old-world things, and grieve over the disappearance of the parish
constables, the head boroughs, the tithing-men, the aletasters, the
beadles, and the reeves. I do not wish to abolish the Justice of the
Peace. I only wish to put him in his proper place. Of course, if he cannot
be happy there, then I am afraid he will have to go.
CHAPTER XII
LANDLORD AND TENANT
At number seven there's nob'dy lives, they left it yesterday;
Th' bum-baylis coom an' marked their things, an' took 'em a' away.
They hardly filled a donkey cart--aw know nowt wheer they went--
But they say th' chap spent his brass o' drink instead o' payin' th'
rent.
SAMUEL LAYCOCK: "Bowton's Yard."
In this branch of the law it cannot honestly be said that the legal
position of the poor is very different from the legal position of the
rich. Given private ownership of land and the right of a landlord to
distrain for rent in arrear, and seize and sell his tenant's goods to pay
himself, it does not seem that the law or the way in which it is
administered is better or worse for rich or poor. The law of distress is,
as its name implies, a harsh and cruel remedy and the shadow of it hangs
nearer and darker over the cottage porch than over the doors of the
eligible mansion, but it is there in both places. To a weekly wage owner
paying an exhausting rent out of a pitiful wage, the ever present right of
his landlord to distrain, whilst it nerves him to make every effort to
keep a clean rent book, must be one of the sad and depressing elements of
daily life that the middle classes do not experience so directly. It is
pleasant to record--what is in fact my experience--that whatever may have
been true of the cruelty of landlords in other times and places the
landlords of to-day owning cottage property are not a harsh race. They
themselves, especially the poorer ones, have their own troubles. The rates
have to be paid, the by-laws to be observed, the notices of the sanitary
inspector to be obeyed, and perhaps the fact that they themselves have to
ask for time to pay and to sue for leniency from corporations and other
officials leads them to be tender with their own underlings. Certain it is
that in the putting in force of the right to evict a tenant the landlord
is very long-suffering. This last step is not usually taken until the rent
is many weeks, or often months, in arrear. Even when an eviction order is
granted, I have known many cases where a landlord renews the tenancy and
collects the arrears at small instalments.
Eviction orders are very often asked for not in the landlord's own
interest but in the community's. The necessity to do the sanitary
requirements of public bodies is a constant source of eviction. The tenant
having no neighbouring house to go to clings to the undesirable shelter he
has got until the forces of the law turn him out in the interests of
hygiene. Another curious cause of eviction is a woman's tongue. A lady
with what is technically known as "a tongue" will set all her neighbours
by the ears; houses on each side of her domicile rapidly empty, and at
length the whole street comes to the landlord demanding that she shall go
or threatening to depart themselves.
The lady with "the tongue" of our day was, and as far as I know still may
be, known to the law as a common scold, and according to Chief Justice
Holt was punishable by ducking. Mrs. Foxby, of Maidstone, was, if I
remember, the last lady who was indicted at common law for this offence
and sentenced to be ducked. She moved, in Trinity Term, 1703, in arrest of
judgment because they had called her in the indictment "_calumniatrix_"
and not "_rixatrix_" and insisted on her motion, although Chief Justice
Holt in kindly warning reminded her that ducking in Trinity Term was
pleasanter than ducking in Michaelmas. As the Court pointed out, mere
scolding was not the offence, it was the constant repetition that was the
nuisance. In the result, after a year's litigation the flaw in the
indictment saved the Maidstone lady a ducking in the Medway.
But though the common scold and the ducking stool no longer figure in the
quarter sessions calendar--though it would rest with the Court of Criminal
Appeal to decide if they are yet entirely obsolete--the woman with a
tongue, the "_rixatrix_," or lady brawler is undoubtedly still existent
and has to be dealt with by the landlord of small property by County Court
eviction.
What is called a possession summons is taken out, and in the hearing of it
the lady always appears and protests vigorously against the treatment
meted out to her, arguing that the street is in a conspiracy against her,
and that she is the one quiet peaceful woman in the neighbourhood. Any
doubt as to the correctness of the judicial decision in making an eviction
order is solved as soon as the order is made, when, self-restraint being
no longer necessary, the full force of "the tongue" is turned upon the
landlord, the judge who is in league with him, and the two stalwart
members of the force who with some difficulty show the lady the door. Next
to dry rot and vermin, a tenant with "a tongue" is the greatest enemy of
the landlord of mean streets.
But what has long been recognised about the status of landlord and tenant,
is that under present economic circumstances it is impossible for a
wage-earner to obtain at the expenditure of a reasonable proportion of his
income proper housing for himself and his wife and children. The duty of
the State to the poor in this matter is gradually dawning on people's
minds, they are waking up to the fact that it cannot be done solely by
individual effort, and on this subject the law, I am glad to report, is
beginning to make serious efforts to set its houses in order.
At present legislation has taken upon itself three objects: (1) The
clearing of slum areas and rebuilding new dwellings, with powers of
compulsory purchase granted to local bodies. (2) The granting to
corporations and councils power to close insanitary houses, and to make
their owners repair them. (3) The permission to local authorities to build
houses for the working classes where there is an insufficiency.
We are a slow moving race. We generally do our legislative reforms by a
succession of statutes vigorously fought over and hacked about by gay
party spirits whose nearest idea of patriotism is to queer the other
fellow's pitch and spoil his budding statute by crimping amendments that
he knows will make it unworkable. We have only gone a little way with the
Housing business as yet, and if the next statute on the matter could be
put in the hands of a small committee of both parties to draft and bring
before the House, perhaps we should get somewhat nearer finality.
It is rather melancholy reading to pick up the latest pamphlet of the
bookstall on the Housing Question and find much of the writer's ingenuity
wasted in trying to prove that his party, and his only, has in the past
made any effort to better the housing of the people, and that in the
future there is only one honest capable scheme which is worthy of
consideration. There is not much real help in these essays. Their burden
is always the same. Recollect at the Election time--"Short's very well as
far as he goes, but the real friend is Codlin--not Short."
The truth is that neither party has done very much. The history of the
matter is much as follows: Writers of all parties and creeds in the Early
Victorian days wrote eloquently of the slum dwellings of our great cities.
Some of deeper insight than the rest saw that all was not well, even with
the rose-covered cottage of the country-side. It is only within our own
lifetime that we have begun to learn that it is morally and economically
wicked for a nation to own slums. This truth has not been taught us by the
priests and politicians of our time, but by our men of letters.
Dickens knew all about it and prophesied in despair that we should have to
wait for five hundred years for reform. You remember Tom-all-Alone's where
Jo lives: "It is a black, dilapidated street, avoided by all decent
people; where the crazy houses were seized upon, when their decay was far
advanced, by some bold vagrants who, after establishing their own
possessions took to letting them out in lodgings. Now these tumbling
tenements contain by night a swarm of misery. As, on the ruined human
wretch, vermin parasites appear, so, these ruined shelters have bred a
crowd of foul existence that crawls in and out of gaps in walls and
boards; and coils itself to sleep, in maggot numbers, where the rain drips
in; and comes and goes, fetching and carrying fever, and sowing more evil
in its every footprint than Lord Coodle, and Sir Thomas Doodle, and the
Duke of Foodle, and all the fine gentlemen in office, down to Zoodle,
shall set right in five hundred years--though born expressly to do it."
Maybe you could not find to-day an exact replica of Tom-all-Alone's;
certainly we have swept away acres of them, but it is still worth while to
read and remember such descriptions, if only to remind ourselves what the
poor have to suffer if the law remains powerless and inert in the
compulsory provision of decent housing. People grumble at State
interference, but they forget what made it necessary. Rampant
individualism led to housing workmen in the tailor's shop, described by
Alton Locke "a low lean-to room, stifling me with the combined odours of
human breath and perspirations, stale beer, the sweet sickly smell of gin,
and the sour and hardly less disgusting one of new cloth. On the floor,
thick with dust and dirt, scraps of stuff and ends of threads, sat some
dozen haggard, untidy, shoeless men, with a mingled look of care and
recklessness that made me shudder. The windows were tight closed to keep
out the cold winter air; and the condensed breath ran in streams down the
panes, chequering the dreary outlook of chimney-tops and smoke."
When we are wondering how far it is our right and duty to interfere
between a man and his house property or whether it is incumbent upon the
nation to take upon itself the burden of housing its people, it is useful
to look on these pictures of England in the glorious days of Queen
Victoria and Albert the Great and Good. The problems were there then, but
it was not the statesmen who saw them and urged their solution.
Nor was it only sentimental Radicals who painted in lurid colours the
horrible houses of the people. D'Israeli, in "Sybil," draws an eloquent
picture of the narrow lanes of the rural town of Marney, which might be
any country town of the South of England--the rubble cottages with gaping
chinks admitting every blast, with rotten timbers, yawning thatch letting
in the wind and wet, and open drains full of decomposing animal and
vegetable refuse, spreading out here and there with stagnant pools--these
things were common-places in the homes of rural England in 1845.
"These wretched tenements," writes D'Israeli, "seldom consisted of more
than two rooms, in one of which the whole family, however numerous, were
obliged to sleep, without distinction of age or sex or suffering. With the
water streaming down the walls, the light distinguished through the roof,
with no hearth even in winter, the virtuous mother in the sacred pangs of
child-birth gives forth another victim to our thoughtless civilisation,
surrounded by three generations, whose inevitable presence is more painful
than her sufferings in that hour of travail; while the father of her
coming child, in another corner of the sordid chamber, lies stricken by
that typhus which his contaminating dwelling has breathed into his veins,
and for whose next prey is perhaps destined his new-born child. These
swarming walls had neither windows nor doors sufficient to keep out the
weather or admit the sun or supply the means of ventilation, the humid or
putrid roof of thatch exhaling malaria like all other decaying vegetable
matter. The dwelling rooms were neither boarded nor paved; and whether it
were that some were situate in low and damp places, occasionally flooded
by the river and usually much below the level of the road, or that the
springs, as was often the case, would burst through the mud floor, the
ground was at no time better than so much clay, while sometimes you might
see little channels cut from the centre under the doorways to carry off
the water, and the door itself removed from its hinges, a resting place
for infancy in its deluged home. These hovels were, in many instances,
not provided with the commonest conveniences of the rudest police;
contiguous to every door might be observed the dung heap on which every
kind of filth was accumulated for the purpose of being disposed of for
manure, so that when the poor man opened his narrow habitation in the hope
of refreshing it with the breeze of summer, he was met with a mixture of
gases from reeking dung-hills."
Science, medicine, philanthropy, sanitary engineering and enlightened
local government have done something to remove many of the horrible things
D'Israeli describes, but one cannot say that the law has co-operated with
much vigour in this beneficent crusade. Without law and compulsion the
work will never be done as thoroughly as is necessary throughout the
length and breadth of the land.
The eloquent outcry, from writers of all creeds and parties, demanding
better houses for the people at length made itself heard within the walls
of Westminster. But it was not until 1868 that the Torrens Act was passed,
the first attempt of the Legislature to deal with slum property. This was
followed by the Artisans Dwelling Act of 1875, which enabled local
authorities to compulsorily purchase slum areas and re-build sanitary
dwellings. In Birmingham, where Mr. Joseph Chamberlain was mayor,
magnificent use was made of these powers to the great present benefit of
the city. In Liverpool, Manchester, and other towns something was done,
but as the business depended in the main on local initiative, and the
spending of money, much more remained undone.
A few small measures were passed, but they did not lead to any great
practical work being put in hand, and again it was the man of letters who
wakened the national conscience. I remember well in the eighties the
appearance of "How the Poor Live" by George R. Sims and the interest and
sympathy it aroused. There is no exaggeration in the book, but merely a
graphic record of fact, and it proves with melancholy certainty the small
progress that had been made since the days of Dickens, Kingsley and
D'Israeli.
It was with a great chorus of self congratulation and the loud braying of
journalistic trumpets that on March 4th, 1884, a Royal Commission was
announced to inquire into the Housing of the Working Classes. It is almost
forgotten to-day, but in its time it aroused great hopes in the breast of
social reformers. Sir Charles Dilke was Chairman, the Prince of Wales
himself was a working member of the commission, Cardinal Manning, Lord
Salisbury, Samuel Morley, Jesse Collings, Henry Broadhurst and other great
public men of the day were his colleagues.
The overcrowding, the immorality and disease and waste caused by bad
housing, the terrible tax of rent on the incomes of the poor were all
rehearsed in painful detail before these great ones of the earth. But when
one comes to remedies and recommendations, there is nothing except the
most trivial and inadequate propositions that the eminent ones can agree
upon.
Their first suggestion is that vestries and district boards should put in
force existing by-laws, though who was to make them do it is not
mentioned. Then they think it would be an added decency to the lives of
the poor if there were more mortuaries near their homes to take the dead
bodies from the already overcrowded rooms--as though the problem they were
there to consider was not the housing of the quick, but the housing of the
dead.
Building by-laws, sanitary inspection, and workmen's trains are a few of
the Mother Partington Mop remedies that this great Commission had to offer
to keep back the sea of troubles that overwhelmed the poor of our great
cities in their struggle for decent existence.
One cannot blame the members of the Commission that so little was
suggested. It was inevitable when one remembers that nothing at all is
possible in the right direction without a great upheaval which is bound to
re-act injuriously on some of the greatest vested interests in the
country. A meeting of the great ones in whom the interests vest is not
likely to bring about immediate reforms.
But at all events here in the pages of the printed evidence are the facts.
The horrors painted by D'Israeli, Kingsley, Dickens and George R. Sims are
at least patiently collated and indexed for us, and now after thirty years
we should do better not to expatiate on the little we have done for
betterment, but to acknowledge how much we have left undone, and show our
repentance in energetic deeds. No one can recognise more clearly than I do
the value of such authoritative evidence of facts and details as are
collected in the report, but the reading of them only makes one the more
impatient at the method of government which can tolerate the continuance
of such abuses.
In 1900, little or nothing having been done, it occurred to Lord Salisbury
that it was time to have another Commission. But it was not until 1902
that a Select Committee of both Houses was appointed to consider, in Lord
Salisbury's own words, how to get rid of "what is really a scandal to our
civilisation--I mean the sufferings which many of the working classes have
to undergo in order to obtain even the most moderate, I may say the most
pitiable accommodation."
The problem could not be better stated. The scandal was with us in 1885,
it was with us in 1900, and it is with us to-day. At least if we are
unwilling or incompetent to solve it let us have done with the constant
consideration and further consideration of Royal and Select Commissions
which only make the hearts of the poor sick with promises and hopes that
can never be fulfilled in our own generation.
One cannot here set out in detail the various Housing Acts that have been
passed; there was one in 1900, which apparently led to more insanitary
houses being closed than new cottages built. There was another in 1903,
with further new provisions and modifications of former schemes, and
lastly comes the Housing and Town Planning Act, which deals rigorously
with owners of insanitary property. This Act industriously made use of may
help to realise our hopes of the possibility of hygienic pleasances for
the poor of future generations.
Here we have a short record of some fifty years of legislative
effort--more or less honest--in which each party has sought to promote
measures to help the poor who are oppressed, as Lord Salisbury said, by
this "scandal to our civilisation," the want of decent housing. And yet
how little has been achieved, how small the results, how disappointing to
find the great men who talked in Parliament and sat on Commissions and
discussed these matters with so much learning and ability passing away and
leaving this problem for us to tackle, and we on our part looking idly on
and still wondering what can be done. If our schoolmasters had taught us
how to make bricks and build with them instead of how to read books and
write more of them, better results perhaps had been already achieved.
There are many acres of houses in England built prior to 1870 that exhibit
all the slum traits that have been so eloquently described in literature,
and many millions of our fellow citizens live in houses which fall below
the minimum standard of sanitation where the decent separation of the
sexes is impossible and the general conditions of life are sunless and
miserable. The amount of overcrowding in England and Wales is shown
graphically enough in the census returns for 1911. Overcrowding from a
census point of view means that more than two persons live in a room,
counting the kitchen as a room, but not the scullery. "Thus," as the
Editor of the Land Inquiry Report tells us, "if a tenement or cottage
consists of two bedrooms and a kitchen, the Census Authorities would only
describe it as overcrowded if there were more than six persons living in
it, no matter how small the rooms. The Census test of overcrowding is, in
fact, quite inadequate to measure the full extent of the evil, and there
is great need for the adoption of a more accurate one. Even adopting this
standard, however, the Census Authorities find that one-tenth of the total
urban population of England and Wales are overcrowded. This means that
nearly 3,000,000 persons are overcrowded."
No one who is constantly meeting the victims of this state of affairs, and
discussing with them, as a County Court Judge has to do, their domestic
affairs, can fail to be struck with the large amount of infantile
mortality and disease, and the prevalence of tuberculosis and the general
physical and moral weariness and debility, which may in a great measure be
traced to the bad conditions in which the working classes must perforce
live because there is nothing better obtainable.
The price paid for such accommodation as there is, is a cruel tax on the
working man. For the meanest shelter he has to pay anything up to twenty
per cent. of his weekly income. Imagine a man with a thousand a year
spending two hundred a year in rent alone. How eloquent would the Official
Receiver be did bankruptcy supervene, as it probably would, and what
homilies he would preach on the rash and extravagant folly of the bankrupt
in spending so large a proportion of his income on a house. And yet this
extravagance is compulsory to a working man, who has to pay out of his
wages for a mere roof over his head money that is badly needed for the
food and clothing of himself and his family.
I have dwelt on this subject at some length because in most of the
chapters of this book my complaint has been that the laws are insufficient
to help the poor, because they have in past days been enacted by the rich,
and are still being administered by the rich, without knowledge of, and
sympathy for, the best interests of the poor. Here the problem is entirely
different. Everyone must admit the energy and good faith of all classes
and parties and officials, within the rules of the party game, in their
endeavour to cope with a condition of things which is an admitted national
disgrace, and a scandal to civilisation. The melancholy conclusion,
however, stares one in the face. The result of interminable inquiries and
committee meetings and palaver is plain unmistakable failure. The fringe
of the subject has scarcely been reached, and the state of affairs which
the man of letters portrayed to the shame of our grandfathers is likely
enough, it would seem, to be "copy" for our grandchildren and their
grandchildren to journalise with world without end Amen!
And although it would be impertinent in me to pretend to have a remedy for
these evils where all the great ones have failed to bring about reform,
yet I cannot help thinking that the reason of the failure is the reason of
much of our legislative failure--the dread of vested interests and the
permissive character of the statutes passed. What is the good of asking a
town council of builders and landowners and estate agents to put in force
laws that will, or at least are expected to, have the effect of
diminishing their incomes? Should I, or would you, enforce an Act of
Parliament with any joyful energy when we knew that the more thoroughly we
did it the more we should be out of pocket? It is asking too much of human
nature.
There has been a clear failure in the smaller local governing bodies in
putting in force even such legislation as exists for the betterment of the
district. The Rivers Pollution Acts are a standing instance of the neglect
of duty by local councils. For years nothing was done to put the Acts in
force, because the smaller polluters were the mill owners, who were
members of the local council, and the biggest polluter of all was the
council itself pouring crude sewage into the river to relieve the rates.
Parliament lacked a sense of humour when it expected mill owners and
sewage boards to prosecute themselves for river pollution.
Good work in housing will never, I think, be really effectively done until
it is left to the initiative of a medical officer of health or a sanitary
engineer, with judicial power to order things to be done and force behind
him to have them done. The idea that a medical officer of health should be
a servant of the casual butchers and bakers of the Town Council is, on the
face of it, an absurd one. He should be as permanent and independent as
are the stipendiary, the judge, or the coroner, for he requires even more
than common fearlessness to deal roundly with the jerry builders and slum
owners who are his aldermen and councillors, and who at present sit on a
committee of appeal from his decisions.
As long as these matters are left solely to local bodies the real burden
of financial consideration, the lack of personal knowledge of hygiene and
sanitation among the members themselves, and the shrinking from enforcing
legal hardships on the poor owners of bad property, will alone prevent
effective reform. To these natural and honest forces must also be added
the weight of vested interests, which deliberately obtain power on local
bodies for the purpose of preventing housing reform being put into
thorough operation.
Never was there a greater and louder demand by the people for a fair share
of the land they live in. The countryman wants his plot and his cottage,
and the town dweller a decent house at a reasonable rent. This is the
"condition of England question" to-day as it was eighty years ago. Never
were there more earnest and sincere people discussing what is to be done
and how it is possible to transform slums into decent dwellings by Act of
Parliament. We have a willing legislature, a desire to make laws for the
benefit of the poor, and after many efforts the result has to be written
down as failure and stagnation. It would almost seem as though voluntary
effort in this affair had pronounced itself impossible, and it remains
undealt with until those who are the real sufferers by the system feel
strong enough to put it right.
Carlyle in an eloquent passage cries out in his passionate way: "Might and
Right do differ frightfully from hour to hour; but give them centuries to
try it in, they are found to be identical. Whose land _was_ this of
Britain? God's who made it, His and no other's it was and is. Who of God's
creatures had a right to live in it? The wolves and bisons? Yes, they;
till one with a better right showed himself. The Celt, 'aboriginal savage
of Europe,' as a snarling antiquary names him arrived, pretending to have
a better right, and did accordingly, not without pain to the bisons, make
good the same. He had a better right to that piece of God's land; namely,
a better might to turn it to use--a might to settle himself there and try
what use he could turn it to. The bisons disappeared; the Celts took
possession and tilled."
Interpreting this passage as one written in the true frenzy of prophecy,
two things seem to me to take clear shape in the future outlook of the
housing question. In the first place, it would seem that it will have to
be settled by a Celt, and in the second place it will not be achieved
"without pain to the bisons."
One would have thought that a better plan would be a small business
parliamentary committee of all interests with power to enforce their
decrees against owners and corporate bodies. Something permanent is
necessary, akin to the Imperial Defence Committee, which knows no party
politics. Are we not here in the face of a real danger to the nation?
Already endeavours have been made to take this matter out of the common
rut of party politics, but these efforts have not been altogether
successful, and if the matter is not settled soon there would seem nothing
for it but a forcible solution and a merry set-to between the Celt and the
bison, in which we may expect the Celt will get the better of the bison
but we cannot be sure that the poor will get all they need even from the
Celt.
CHAPTER XIII
THE TWO PUBLIC HOUSES
1. THE ALEHOUSE.
Judged by no o'er-zealous rigour
Much this mystic throng expresses;
Bacchus was the type of vigour
And Silenus of excesses.
LONGFELLOW: "Drinking Song."
Whatever you may think about it you cannot travel from Charing Cross to
Dijon through the hop-fields of Kent to the vineyards of the Cote-d'Or
without admitting that whether the vine be a gift of good or evil it has
come to stay. Bacchus is still full of vigour and has as many followers as
ever. But the law has nothing to say to Bacchus. The law is after old
Silenus. It lures him into a den and makes him drunk and then locks him
up, and the holy Willies wag their heads at his shame and collect money
for his reformation.
There are two public houses open to the poorer citizens--the Alehouse and
the Workhouse. The rich man frequents neither, yet as magistrate or
guardian he takes upon himself to lay down the rules by which they shall
be run. These fussy, amiable, amateur bosses have conspicuously failed at
their job. It is not to be wondered at. As an able Manchester business
man once said to me of his partner: "He loves sitting on the licensing
bench, and thank heaven he does; it keeps him out of the office." But even
if the bosses were capable and intelligent they could not hope to succeed
in their work. Public institutions should be governed by the men who make
use of them. The rich man's public-house is so regulated--and what is the
result? One may not approve of every detail of cookery or decoration at
hotels like the Ritz in London, or the Adelphi and Midland in Liverpool
and Manchester, but the average middle-class man will find in them such
reasonable standard of comfort as he desires. There is, at all events,
space and light and air, cleanliness, and some luxury. On proper occasions
and in fit places there is music, dancing, and billiards, and you may play
a game of bridge with your friends when you wish, even for threepence a
hundred, in a private room. Moreover, there is always food of good quality
obtainable at varied prices, and you need not take your drink standing at
a counter, though you can if you wish to when there is an American bar.
Why may not the working man have similar entertainment at the Pig and
Whistle? A complete answer to that question would necessitate a study of
the position of artificers and labourers in the middle ages and a short
history of the ideals of the well-to-do puritans.
The rich have had two objects in view in their legislation about the
working-man's public house. A certain section of the rich--the
brewers--have aimed at a monopoly of the right to sell him ale, and
nothing else, at the biggest possible profit to themselves. A second
section opposing the first--the teetotal magistracy--have sought to make
the public house as dreary and miserable a place as possible in order to
punish the wicked man who wants to drink ale. Between the brewer and the
puritan the respectable working man with a normal thirst has been jockeyed
out of his freedom. Swilling and tippling in alehouses and private clubs
has been encouraged; the reasonable use of ale--which Mr. Belloc rightly
asserts to be the finest beverage in the world--has been crabbed and
discouraged. Except an opium den--of which I have only hearsay
knowledge--there is probably nothing more comfortless and degrading than
the lower-class alehouse of our towns and cities.
Even in the remote days of Plato it was recognised--at all events by
philosophers--that there was such a thing as thirst. "No one desires
_drink_ simply, but good drink, nor food simply, but good food; because,
since all desire good things, if thirst is a desire, it must be a desire
of something good." Further on in the discussion, Socrates addresses
Ademantus thus: "Then for any particular kind of drink there is a
particular kind of thirst; but thirst in the abstract is neither for much
drink, nor for little, neither for good drink nor for bad, nor, in one
word for any kind of drink, but simply and absolutely thirst for drink is
it not?"
"Most decidedly so," replies Ademantus--who never on any occasion stood
up to Socrates and contradicted him. "Most decidedly so."
"Then the soul of a thirsty man," continues Socrates, "in so far as he is
thirsty has no other wish than to drink; but this it desires and towards
this it is impelled."
"Clearly so."
If the licensing bench, and especially the teetotal portion of it, could
once arrive as far in their studies of the subject as Socrates had done,
and could comprehend the zoological fact that man was a mammal with a
thirst, they would be on the road to enlightenment, temperance, and
reform.
Of course Socrates knew all that the puritans know and a lot more about
the rational satisfaction of love and hunger and thirst and the irrational
and concupiscent desires that are attached to all natural appetites, but
in dealing with the law of licensing in reference to the poor these
considerations are not really important. What is wanted is equality. Grant
to the poor the same reasonable facilities of enjoyment that you grant to
the rich, and leave it to public opinion to see that they are not abused.