THE FUTURE OF THE COUNTY COURT.

“Had I God’s leave, how I would alter things!”

—_Robert Browning._

The County Court like the poor in whose interests it was invented is

always with you if you have one of those perverted minds that wastes its

moments on dreams of legal reform. Seventeen years ago I studied the

question with earnest enthusiasm under the strange hallucination that it

was a real business question ripe for a business solution. It seemed to

me nearer to the lives of people than the Veto, or Tariff Reform or the

Ornaments Rubric. That is the result of leading a narrow self-centred

life. In a word, without knowing it, I must have been a Whig, for, as

Sir Walter Scott remarks, “Whigs will live and die in the heresy that

the world is ruled by little pamphlets and speeches, and that if you can

sufficiently demonstrate that a line of conduct is most consistent with

men’s interest you have therefore and thereby demonstrated that they will

at length after a few speeches adopt it of course.” Thus for many years

I have pegged away with papers and speeches and like a true Whig find

myself still hopefully at it, playing the same game perhaps but with

slightly increased handicap. To-day I have learned by experience that the

future of the County Court is not to come in my time and to doubt if I

shall ever climb into some sufficiently high place to see the promised

land that I shall certainly never enter.

I have come to regard the question with the same child-like affection

and belief in its possibility, but also in a sense archæologically, as

becomes one whose first childhood is but a dream and who feels himself

pausing on the threshold of a second. Had I any political foresight

seventeen years ago I should have recognised that the reform of the

County Court system is not a party matter, it is eminently a matter

of greater interest to the poor than to the rich, to the business man

than to the man of leisure. Now, more and more, Parliament has become

a machine for registering the decrees of the prevailing party and

one cannot find that the poor are in any way directly represented in

Parliament and business men only in a small degree, whilst the interests

of the rich and of men of leisure have an overwhelming representation.

Moreover Legal Reform has to fight for its hand against that band of

brothers, the lawyers in Parliament, who from generation to generation we

find stalwart and faithful in their clear-sighted optimism that all is

well with the law—and lawyers.

The story of the evolution of the County Court is not without

entertainment for those who are interested in the practical affairs of

the community. In its struggle for existence we find a warfare being

carried on between the business man and the lawyer in which, foot by

foot, the business man gains and places his pet tribunal in a more secure

position whilst he takes breath for a new encounter. Still, although

the building up of the County Court to its present story of usefulness

has been the work in the main of business men, yet few realise that the

County Court of to-day with its £100 jurisdiction is only a belated

attainment of the ideals of Lord Brougham in 1830. It was in that year

that Brougham brought in a Bill in the Commons—he was then member for

Yorkshire—to establish “Local District Courts,” with a jurisdiction

limited to £100 in contract, £50 in injury to person or property, and an

unlimited jurisdiction by consent. It has taken us seventy-five years to

arrive at the position that was thought practicable by a great reforming

Chancellor in 1830. And yet there are many Englishmen in daily terror

lest we should reform anything too hurriedly. Lord Brougham’s ruling idea

was free law. He was in a sense a legal socialist. Law to him was one of

those things that every member of an ideal community should have without

paying for it individually, like fresh air and sunshine, and the Church

of England and the British Museum, and gaslight (in urban streets), and

roads, and the police, and the education of your children—all which

things an English citizen is entitled to have to-day without the payment

of any fees. He admitted the over-ruling necessity of fees in his day,

owing to the poverty of the Exchequer, but he said, “he must enter his

protest against the principle, and insist that any tax no matter what,

for the purpose of drawing the payment from the public rather than from

the suitor would be better than fixing it on legal proceedings.” Free law

is, of course, a grand ideal, and may again attract legal reformers; but,

without attaining that ideal, it might be possible to abandon in a great

measure the fees collected from poor suitors. Law, like medicine and

surgery, might be free to the poor—not merely to paupers, but to all who

are unable to pay fees and costs without running into debt. It will take

a Savonarola to convert the Treasury to this view, but it is an enticing

subject for a youthful legal missionary full of ardent zeal and possessed

of what the insurance world calls “a good life.”

The dramatic duel between Lord Brougham and Lord Lyndhurst over the

former’s Bill in 1833 is full of historical interest, but Lord Brougham

was unsuccessful, and it remained for Lord Cottenham in 1847 to establish

County Courts with a jurisdiction of £20. These are the Courts that we

use to-day, with an enlarged jurisdiction up to £100 in common law, £500

in equity matters, and the added jurisdictions given by the Workmen’s

Compensation Acts and many other statutes which have chosen for their

tribunal the County Court.

Throughout the country we are face to face with two statistical facts

which, if our reforms were moved by scientific considerations, would

lead the legal reformer to turn his serious consideration to the County

Court. We find in the great centres of population in the north and the

midlands, firstly, that there is a slight shrinkage or perhaps only

stagnation in the world of the High Court, and secondly, that there

is a continuous increase of business keeping pace with the growth of

population in the County Courts. I am far from saying that all the

expansion of County Court work is progress—much of it is the reverse and

in order to understand how far it is good and how far it is bad, it is

worth while trying to understand what the County Courts do.

These Courts lead as it were a double life. They have extended their

energies along two different branches of business. Each Court has

become a huge debt-collecting machine for minor tradesmen and at the

same time has developed into an important and trusted tribunal for

deciding disputes between citizens. Both these functions are important

ones, but the two branches have nothing to do with each other. In the

debt-collecting branch the cases are, for the most part, undefended; in

the other branch the cases are nearly all fought out. In the first branch

the judicial work is unimportant, the machine works automatically; in the

second branch the vitality of the Court depends almost entirely on the

quality of the judicial work.

In considering the future of the debt-collecting branch of the Court it

will be necessary to consider the whole question of imprisonment for

debt, which is the ultimate sanction of the business. The point to be

considered is, I think, How far is it right for the State to provide a

machine to collect the class of debts that are, in fact, collected by

the County Courts? The point is a practical one, for if imprisonment

for debt were abolished or mitigated, a great deal of the work of the

County Courts would undoubtedly fall away, leaving reasonable time at

the disposal of the Courts to try cases under the present extended

jurisdiction, and possibly making room for a further extension, if that

were thought desirable.

Let me try and describe the present system in a few words. A grocer,

draper, or jeweller hands over to a debt-collector a large number of

debts to collect; the customers are, from a business point of view, the

“undesirables.” The debt-collector makes some effort to collect the

debts outside the Court, and then issues a batch of summonses against

all who are or pretend to be impecunious. It is no uncommon thing for

one collector to issue a few hundred summonses in one day. On the day of

trial the cases are either undefended, or the wife appears and consents

to judgment, and an order is made of so many shillings a month. The

defended cases are, I should say, less than five per cent. of the total

summonses issued, and those successfully defended are a negligible

quantity. In Manchester and Salford, where we used to divide this class

of work from real litigation, the lists were seldom less than 400 cases

a day. When the judgments are obtained, the duty of the defendant is to

pay the monthly instalment into Court, and a ledger account is opened,

the Court becoming a sort of banker for the purpose of collecting and

paying out the money. Whenever the debtor fails to pay an instalment,

the collector is entitled to take out a judgment summons, calling on

the debtor to show cause why he should not be committed to prison for

non-payment. On proof that the debtor has means to pay, or has had means

since the judgment, the judge’s duty is to commit him to prison.

Two things are clear about this system. It is not a system of deciding

disputes, but a system of collecting debts, and in the cases of

workpeople without property it could never be carried out without

imprisonment for debt. When the legal reformer looks at the figures

relating to imprisonment for debt, he will see at a glance that if he

could get rid of a large quantity of the debt-collecting, there would

be more time for the real litigation. Many people still seem to think

that imprisonment for debt is abolished. In France and the United States

and in most civilised countries I believe it is, but in England it is

not only not abolished, but is greatly increased. The actual number

of debtors imprisoned has recently decreased, owing no doubt to the

fact that Judges are more and more inclined to temper the wind of the

statute to the shorn lamb. But the number of summonses issued and heard

increases, and there is no doubt the credit habit grows upon the working

classes, and is encouraged by the system of imprisonment for debt.

In 1909, the last year of statistics before me, no less than 375,254

summonses were issued. It is the commercial and domestic waste which lies

hid in these figures that distresses me. They reduce me to the despair of

those two immortals, the Walrus and the Carpenter, who

“Wept like anything to see

Such quantities of sand.

‘If this were only cleared away,’

They said, ‘it would be grand.’”

But ought it to be cleared away? In the main I think it should. One might

lay down the principle that where the debt was not necessarily incurred

the State should not assist the creditor to collect it by imprisoning

the debtor. For the system is used, in the majority of cases, by a very

undesirable class of creditor. I analysed a list of 460 summonses heard

by me in one day. There were 284 drapers and general dealers. These

include all the instalment and hire system creditors. There were sixty

jewellers, thirty-five grocers, twenty-four money-lenders, and ten

doctors. Now, with the exception of the doctors, and possibly in a few

instances the grocers, it was not in the least desirable, from the point

of view of the State, that these debts should be collected at all. Why

should taxes be imposed and work done at the public expense to enable a

jeweller to persuade a man to buy a watch he does not want? Why should

the State collect the jeweller’s money for him by imprisonment for debt?

If there had been no imprisonment for debt the jeweller’s business

wouldn’t pay, and the workman would have one chance less of mortgaging

his wages for the immediate delight of possessing a third-rate piece of

jewellery. This would be better for the State and the workman, and for

everybody but the jeweller. But why should his interests prevail over

those of the rest of the community, and why should we spend money in

promoting a business of which most of us disapprove? Everyone must have

noticed of late years the enormous growth of firms whose main business

seems to be to tempt people of small means to purchase things they do not

want, or, at all events, cannot afford. Take up any newspaper or magazine

circulating among the lower middle classes, or among working men, and

you will find it crowded with advertisements of musical instruments,

cycles, furniture on the hire system, packets of cutlery, all of which

can be obtained by a small payment down and smaller instalments to

follow. Remember, too, that over and above these there exists a huge

army of “tally men” and travelling touts, who are pushing on commission,

clothing, sewing machines, Family Bibles in expensive series, jewellery,

and a host of unnecessaries. What chance has the working-man to keep out

of debt? Not one of these transactions has any commercial sanction.

Credit is given merely because there is imprisonment for debt. And

there is a further aspect of this question which I am surprised has

never attracted the attention of temperance reformers. As long as a man

can get credit for groceries and clothes there is not the same urgent

reason to spend his cash upon these things. But cash is necessary in the

public-house, because, by the Tippling Acts, no action can be brought for

the price of drink consumed at a public-house. So the obvious result too

often follows: the wages are spent at the public-house, and the credit

for the week’s groceries and the children’s boots is obtained under the

sanction of imprisonment for debt.

Much more might be said in objection to the system of imprisonment for

debt, but we have enough before us, I think, to show a strong case for

reform. The next question will be: Should that reform be abolition?

Although I am personally in favour of the abolition of imprisonment for

debt, I am in doubt whether it is desirable at the moment; and I am

so eager to see some reform that I would welcome any measure, however

meagre, that did something to mitigate the misfortunes of the insolvent

poor. I have suggested as a practical measure that no summons should

be issued or committal made for a less sum than forty shillings. One

must remember that there are a huge number of traders giving reasonable

credit to their fellow-traders, who find, when they seek to recover

the debt, that the goods in the house or shop are in the wife’s name.

This is really a quasi-fraudulent obtaining of credit, and there are

many similar cases not within the criminal law where imprisonment for

debt seems a natural remedy. Moreover, if one studies the evidence

given before the Commissioners on the subject, and if one discusses it,

as I have, with men in business, one finds that abolition would meet

with great opposition from powerful trade interests, whereas the “forty

shilling” proposal is generally regarded as a fair experiment, which

would injure no one but traders who deliberately give credit to the

poorer working class under the sanction of imprisonment for debt. In my

own experience, I have found hardly any cases of judgments summonses

taken out for more than two pounds where there was not ample evidence

of means, and where the non-payment was not more or less of the nature

of a contempt of Court. In the smaller cases the means, though proved

to have existed since the judgment, have disappeared, and the debtor

is only saved from imprisonment by the leniency of the Court. Total

abolition of imprisonment for debt would probably never be carried by

consent. It would mean more commissions, inquiries, reports, and the

waste of time that these things necessitate. Abolition of imprisonment

for debt for sums under forty shillings—a great practical reform for the

very poor—would, I believe, be carried by consent. That is why I put it

forward. It is utterly illogical but intensely practical; and when one

has been face to face with the misery of others for many years, one cares

more for business than logic.

Assuming, therefore, that the future of the County Court as a

debt-collecting machine is to be a future of decrease, that the

legislature are going to save the taxpayer’s money and encourage thrift

by refusing to collect undesirable debts, what will be its future as a

litigating machine?

I may commend to anyone desirous of studying in further detail

the arguments for and against the extension of County Courts, the

proceedings of the Norwood Commission on County Courts in 1878. There

is no doubt that if the business man had had his way the County Court

in urban centres would have long ago been a district Court for all but

cases of some peculiar public or legal importance. The great enemy to

such an extension has always been the lawyer, and the London lawyer

in particular. A very eminent solicitor, giving evidence before the

Commission in 1878, had no confidence whatever in County Courts. His

evidence was very typical, and shows how carefully one should criticise

the evidence of a professional man who is also a very superior person.

His view was that “When occasionally a client of mine of position who

has been summoned to the County Court comes to me, I am unable to leave

him in the lurch, but I never go into the County Court myself.” Asked

whether he thought it “undignified,” he replied enigmatically: “It is

not a matter of dignity, but a man of position cannot go into the County

Court.” It turned out later that it was a physical difficulty, for it

was “quite inconsistent with the position of a professional man to stand

in the County Court with women bringing cases about washing-tubs, and

servants summoning their masters for wages.”

He called them untaught knaves unmannerly

To bring a slovenly, unhandsome corse,

Betwixt the wind and his nobility.

Dozens of times, he told the Commission, barristers had declined to go

into the County Court, and his clerk had gone to half-a-dozen barristers

before he could find one who would demean himself by taking a case in the

County Court. County Courts were, in his view, “inherently incapable of

conducting important litigation.” The County Court Judges had not, in his

opinion, the confidence of the country, because they are not taken from

the successful members of the Bar, it is known that their salary is an

extremely small one, there is no Bar attending before them, there is no

report of their proceedings, and there are difficulties of appeal. One

thing I find very delightful in the eminent solicitor’s evidence.

_Question._—Some of the County Court Judges are very competent

men, are they not?

_Answer._—Extremely.

_Question._—You think that there are some who are not equal to

the others?

_Answer._—Yes.

_Question._—Is not the same thing true in regard to the

Superior Courts?

_Answer._—You will not expect me to answer that question, I

think.

Even in the dark ages of 1878 one would have thought he might have risked

an affirmative.

One does not quote the eminent solicitor’s opinion merely for the humour

that attaches to old-fashioned ideas and prophecies that are brought to

light in a new age and found to be absurd. No doubt he was fighting for

a substantial thing, in a word—costs, and he was fighting the wreckers

that wanted to break up the machinery that made costs, for he naturally

disliked to see the smooth, well-oiled machine that worked so well for

him replaced by some cheap machinery of one-horse “costs” power. In one

thing I confess to his statesmanlike insight. If you want to improve

the County Courts, he said, the “only improvement would be to double

the salary of the judges at least,” and let the judge reside in his

district, “but then you would be establishing superior Courts all over

the country.” And the idea of the “country” having similar facilities to

London for the trial of actions was too preposterous. It had only to be

stated, it was self-condemned, and the matter dropped.

One must not suppose that there were no champions of saner methods in

1878. On the contrary, I think the reformers were the better team of

the two, and pressed their opponents hard, although they did not score

greatly in the end. What could be more interesting or important than the

opinion of Lord Bramwell, who was concerned in several of the Judicature

Commissions prior to 1878? His view was that the County Courts should

be made constituent branches of the High Court of Justice, and that as

a consequence of that, the existing jurisdiction in common law should

be unlimited. That is to say every action would commence in the County

Court and be tried there unless the defendant chose to remove it to the

High Court. It was pointed out that this would practically mean giving

to every district, local Courts with full powers, and among other things

that it would lead to the “deterioration of the Bar.” Lord Bramwell

objected to the phrase, and answered his opponents by saying that the

then Attorney-General (Sir John Holker) and Mr. Gully and Mr. Pope and

Mr. Higgins, one of her Majesty’s counsel, have belonged to the local

Bar, “and I think I may say of my knowledge, that the local Bar of

Liverpool is as good as the London Bar.” This is important testimony,

inasmuch as any evolution towards district Courts that will injure the

assize system is sure to be opposed by those barristers—and there are

many in Parliament—who are interested in the assize system, and one

argument will be that the client will be deprived of the advantage of

London “silk” if his case is tried in the County Court. Lord Bramwell

disposes of that argument very shortly. “If there is any disparagement

or injury to the Bar for the benefit of the public, the Bar must undergo

it; that is all.”

In other words, the Courts of the future must be made convenient to the

public as well as convenient to the profession; and where interests clash

the public interest must be considered before the professional interest.

This looks when written down an obvious platitude, but the history of the

efforts to obtain and improve County Courts since 1830 will convince the

legal reformer that it is worth re-stating.

Some years ago I made some elaborate calculations from the Blue

Books, the results of which were rather surprising even to myself. I

investigated the figures of ten typical urban Circuits in the centres of

industry and of ten typical rural Circuits in agricultural districts. I

found that in the former Circuits in ten years there had been a large

increase in business. Nearly £40,000 a year more was paid to the Treasury

in fees, and more than £150,000 was the increase in monies collected for

suitors. In the same ten years similar figures for the rural districts

showed a marked decrease. When one compared the turnover of the ten urban

Circuits as against the turnover of the ten rural Circuits, it was as ten

to one. I wondered what a Harrod or a Lipton or a Whiteley would have

done with these Courts if he had found in auditing their accounts over

many years that ten of them were non-increasing in a business sense, and

that the other ten were increasing; if he found that he drew £150,000

as an income from one set and £40,000 from the other set. Would he not

consider whether there was not a class of business being done by the

urban circuits worthy of special consideration and encouragement?

For what did these figures show? They showed on the one hand a stagnant

and non-increasing business, and on the other a business increasing by

leaps and bounds. What business man would hesitate to extend ten branch

concerns capable of so great an improvement in turnover in the course of

a few years? I am frankly an enemy to making the suitor pay for his law.

I believe, as Lord Brougham did, in free law; but if the system is to

continue, why should a suitor in Birmingham pay more for his law than is

necessary in order that a suitor in Ambleside may pay less for his law

than it costs?

The Courts are, no doubt, not paying concerns, but how far some Circuits

are run at a profit it is impossible for anyone outside the Treasury to

ascertain. There is no doubt, however, that the loss in small Courts is

very great, and whether they are of any great value to a district in

these days of postal facilities and cheap railway transit I have grave

doubts. I have always thought that the Post Office might work a great

deal of the pure debt-collecting business in connection with the County

Court, if it were thought desirable. It would, to my mind, be a natural

co-ordination of two public offices, and might adapt itself very well to

the needs of rural districts. If a country debtor could pay his debt to

the nearest post office, and get an official receipt there, many small

Courts and offices would become wholly unnecessary, and with a post

office cash on delivery system one excuse for giving credit would be

removed.

Why one little town has a Court and another has none it is as impossible

to say, as why one little pig went to market and the other little pig

stayed at home. These ancient myths are part of our history, and any

effort to dislodge them is rightly made difficult. But whilst the Courts

of London and the Midlands and the North are overcrowded, there are

actually ten Courts issuing less than 100 plaints each—their average is

57!—and thirty-two Courts with less than 200. Alston, in Cumberland, is

the holder of the record. This Court issued twenty-seven plaints and

four actions were heard. It heard two judgment summonses, and made a

commitment order in one. And the Court collected sixteen pounds in fees.

To cope with this annual business the Judge sat once and the Registrar

three times. It will take a long time to persuade these small communities

that it is necessary they should give up conditions such as these to

which they have become accustomed. I think it would be more readily done

if the districts that had no real use for a County Court or an Assize

Court were only allowed to retain them on payment of what they cost to

the community.

The endeavour to bring justice to the poor man’s door is more

praiseworthy than practical. I remember explaining to a collier’s wife

that her husband must attend with her, and adjourned the case to a Monday

for that purpose. Monday is often kept by colliers as a saint’s day.

“Eh!” she replied. “It will be very onconvanient. My maister winna like

coming on a Monday. Besides, it’s my weshing-day.”

Judgments in Vacation · 第 35 / 53 题