The Law and the Poor Part 11

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 ma.s.s 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 circ.u.mstances 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 c.o.c.k-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 att.i.tude of mind of the man in the street towards the High Court of Justice. c.o.c.k-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 c.o.c.kerel, 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 s.h.i.+llings 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 s.h.i.+ft 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 a.s.sistance. 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 pa.s.sed 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 n.o.ble 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 n.o.ble att.i.tude 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 indors.e.m.e.nt 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 cla.s.s. 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 cla.s.s 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 cla.s.s 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 cla.s.ses, 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 circ.u.mstances 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 const.i.tutional 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 a.s.size 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 const.i.tutional 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 pa.s.sage he inveighs against judges in a strain of even coa.r.s.er 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 bia.s.sed 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 pa.s.sages 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 t.i.tle 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 ign.o.ble, 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 pract.i.tioner 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 c.u.mbrous 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 a.s.sistance 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 a.s.signed 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 inst.i.tution of the Public Trustee. No reform has done more to mitigate domestic worries and anxiety than this beneficent inst.i.tution. 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 a.s.sistance 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 a.s.sistance. I often think that a poor man or woman coming into a Court for the first time is like the average middle-cla.s.s 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 a.s.sistance. 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.