The Law and the Poor Part 12

"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 a.s.sistance 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 a.s.sistance 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 a.s.sign 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 a.s.sistance 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 a.s.sertion 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 a.s.sistance, 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 a.s.sizes 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, pa.s.sed 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 pa.s.sed 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.

d.i.c.kens 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 att.i.tude 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 Hersch.e.l.l 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 st.u.r.dy 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 a.s.sist 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 a.s.sist 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 subst.i.tute," he said, "this most costly machinery for the present system would deprive our criminal Courts of their princ.i.p.al 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 cla.s.ses 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 circ.u.mstances 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 p.r.o.ne 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 coa.r.s.e and ill-mannered things about another man's religion in open s.p.a.ces 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 inst.i.tutions, is approached by an ever open door; but in practice more goats wander through the opening than sheep. Yet your sheep is a born trespa.s.ser. 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 punis.h.i.+ng 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 c.o.ke, 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 s.h.i.+llings. 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 cla.s.s 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 alt.i.tude 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 cla.s.ses 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 cla.s.s character--sn.o.bbish 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 sn.o.bs, 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 inst.i.tutions, even the administration of the criminal law, a certain amount of cla.s.s sn.o.bbery 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 cla.s.s naturally appeals to our b.u.mp of forgiveness more readily than that of a slum dweller whose temptations and environment we know nothing about.