“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.”