The Law and the Poor Part 4

Drapers 154 General dealers 130 Jewellers 60 Grocers 35 Moneylenders 24 Doctors 10 Tailors 5 Miscellaneous traders issuing less than four summonses 42 --- 460

General dealers, it must be remembered, are traders in a large or small way of business who will sell furniture, drapery, clothes, cutlery, or anything you like, on the instalment system. Their methods of trading are tally-men's methods.

If this list be looked at, it will be seen that the general public make very little use of imprisonment for debt. The substantial shopkeeper and ratepayer is scarcely represented at all, the grocers and a few of the big general dealers being the only people who pay rates. Some of these general dealers it should be remembered are limited companies having numerous agents paid by high commissions and spending large sums in advertising.

Their prices are apparently low, but the quality of their goods leaves much to be desired. Now what worries me is, why should the State keep Courts going for men of this cla.s.s? The only creditor in that list for whom one can have the least sympathy is the doctor, and the National Insurance Act has now put him on a cash basis, so that in a list taken to-day he would not appear so often. It is clear from these figures that at a cost to the general body of taxpayers you are encouraging a bad cla.s.s of parasite traders to choke the growth of thrift among the working cla.s.ses.

For unless you make it ruinous to the creditor for the credit to be given you will never stop it. How can a man at work hinder credit being given through the agency of the wife when the law permits it and caters for it by providing the trader who lives by it with a special debt-collecting machine without which this cla.s.s of trader were impossible. I have known cases where a working man's wife was dealing with nineteen different Scotch drapers. What wages can satisfy such an orgy of drapery as that?

How often, too, do men and women buy watches to p.a.w.n them for drink or a day at the races? What is this but an evil and ruinous form of moneylending? And what makes these things possible among our poor people?

The law siding with the knave against the fool; the saving clause for the imprisonment of poor debtors in the Act of 1869.

And whereas I shall show you that bankruptcy and divorce are the luxuries of the rich, so it is only fair, I think, to allow that imprisonment for debt is a distinctive privilege that the law reserves for the poor. A man among the well-to-do cla.s.ses is never imprisoned for debt; the wage-earners are practically the only people who are subject to it.

The governor of a gaol reported a case to the last Select Commission that sat and did nothing on the subject. A labourer was sent to his custody for twenty-one days in default of payment of four s.h.i.+llings and costs, five and ninepence in all. How can a State for very shame prate about the extortion of moneylenders when it adds forty per cent. on to a small debt like this for costs? The man was a widower with four children, the eldest of whom was thirteen, and the youngest two or three years old.

When father went to prison the children went to the workhouse. That is all part of the system. The debt was a tally-man's debt for clothes supplied to his late wife. The governor sent it as a typical case for the Commission to consider. "As I believe," he wrote, "that there is an idea of having the law on imprisonment for debt amended."

The good governor was, of course, entirely mistaken about that. There is no such idea, except in the heads of dreamers and visionaries like Elisha and the good governor and myself, and we do not count. So his report ended in nothing, and remains on record as a typical result of the working of imprisonment for debt in a civilised European State in the early part of the year of our Lord 1909.

I should like to leave the matter there as a horrible example, for so it is, but I am a man of truth--and, in fact, the poor labourer was not kept in gaol. It was afterwards discovered that the good governor, when he investigated the man's case at 9.30 a.m. on the morning after his arrest, had paid his debt for him and set him free. You remember that Elisha in a similar case performed a miracle by filling several jars with oil. For myself, I think the good governor's was an even n.o.bler deed.

And when the supporters of this wretched system tell you that very few people actually go to gaol, that is, in a sense, true. There are only about six or seven thousand, say, who go to prison on a hundred and odd thousand warrants issued. The number too, is decreasing. This is not, however, to the credit of the law, but because, as I shall show, the law is not strictly administered, and also because the public conscience, what Lord Haldane so graphically described under the German t.i.tle _Sittlichkeit_, is against it. The habit of mind, custom, and the right action of good citizens do not sanction enforcing debt by imprisonment. It is only the greedy, low-down citizens who deign to use it. But the matter is lightly regarded. A few thousand poor people doing time for trumpery debts cannot, anyhow, be allowed to trouble the sleep of the middle-cla.s.s voter, and what am I but an untaught knave to bring their slovenly, unhandsome corpses betwixt the wind and his n.o.bility?

It is not only the very poor who are dragged to gaol that suffer. The system is really one for blackmailing the poor man's friends and relations. You ask a debtor when he comes before you on a second instalment of a debt: "But you managed to pay the first instalment?"

"Yes," he replies; "but I had to borrow it from my brother-in-law, and I have not paid him back yet, and he can ill-afford to lose it."

I have heard that story hundreds of times, and I know it is often a true one. Bailiffs will tell you that on the road to gaol a prisoner will ask to be allowed to call at various houses, looking for an Elisha, and if he cannot find anyone to work miracles nowadays he does very often find someone with five and ninepence and a kind heart. The poor are very good to one another in distress, and it is better that a brother man should be saved from gaol and restored to his home and children than that the landlord should have his next week's rent.

In the bad old days a County Court judge openly said that he found it better to commit to prison for six weeks rather than any shorter period, for he found that the longer the period for which he committed people to prison the shorter the term served, "because when they were committed for the whole six weeks they moved heaven and earth among their friends to get the funds to pay."

Friends of the system of imprisonment for debt call this "putting the screw on." I think "blackmailing" is the straighter English--but any dirty old phrase will do.

And an enormous evil, the extent and results of which can only be guessed, is that the power to send a fellow citizen to gaol for debt, the power to issue or not to issue a warrant for his arrest at any moment after he is in default, places a man and his family so entirely at the mercy of his creditor that, if the creditor be a man of bad character, terrible results may follow. Few of us probably have not heard stories of an evil-minded creditor using his power to seduce the virtue of a wife in her husband's absence. There is certainly truth in such stories. Human nature is the same in narrower lanes than Park lane. The tally-man plays on the wife's love of finery, she gets into debt, her husband knows nothing of it. As long as the wife is complacent nothing is heard of the debt. I do not say such scandals are common, but I have heard enough of such stories to know they are not fairy tales. Human nature being what it is the wonder is that these dramas are not more often enacted. When the poor have their Divorce Courts no doubt the evidence of them will be forthcoming, meanwhile they rest mainly on the complaints of women of insults offered to them, which may be fabrications, but are not always so. What a responsibility rests on a State that maintains a system which leads to such evils.

Another and less terrible affair is the political influence wielded by a grocer or draper over the free and independent voter whom he can put in gaol for twenty-one days if he fails to see eye to eye with him at election times about Disestablishment or Tariff Reform. Yet this is one of the minor evils of the working of the Debtors Act of 1869. In a hard-fought Lancas.h.i.+re election which ended in a tie there was a great flutter and to-do caused by the arrest on the eve of the poll of some earnest debtor of one colour by an equally earnest creditor of another colour. It may, of course, have had nothing to do with the election--but one never knows. Anyhow, it happened, and it was certainly not a desirable incident from the point of view of the losing candidate.

The theoretical arguments against the abolition of imprisonment for debt are few. The chief one is that a working man would be unable to get credit in times of distress. Personally I do not believe it. The argument has been used on every occasion when any legislative step has been taken to mitigate imprisonment, for always the prophecy has been: trade will suffer and individuals, for want of credit, will starve. On every occasion the facts have obstinately refused to honour the prophecy after the event. I am inclined to back history against prophecy in this matter. Credit will be given to a working man of good character to a reasonable amount, but he will not be tempted, as he is to-day, to mortgage his future wages on the security of his body for every pa.s.sing whim. Beer is a cash business, betting is a cash business, picture palaces, railway trains, tram cars, slot machines, are all run on a cash basis, yet no one will pretend that the working man does not get as much as he wants of the goods and services of all of them.

To-day the temptation, and very largely, I am sorry to say, the practice, is for a workman to make the brewer and the betting man first mortgagees of his weekly wages, whilst the draper and the grocer are too often very ordinary shareholders indeed, obtaining an irregular dividend ranking after the Treasury fees of the County Court. Can anyone honestly say that it would not be better for the draper and the grocer to have their working-cla.s.s business put on a cash basis. Abolish imprisonment for debt and the grocer and draper will demand cash in advance or, at the worst, weekly bills. The workman will then be face to face with the immediate question of whether he prefers to spend his wages in drink and pleasure for himself or food and clothes for his wife and children. I have no doubt what his answer will be. The working man is of the same nature as ourselves. In the old days of general imprisonment for debt everyone lived in debt. The middle cla.s.ses were tempted to live beyond their means and did so, and the Micawbers of the world were always being carried off to prison, leaving their families in tears. Now such a state of things is unknown. Through the great private and public stores the middle cla.s.ses buy for cash the best material at the cheapest prices and live within their incomes. The result in their lives is matter of social history. Why is it to be supposed that any different result will be arrived at when the working cla.s.ses are no longer tempted by a false system of credit?

"The motive of credit," says Dr. Johnson, "is the hope of advantage.

Commerce can never be at a stop while one man wants what another can supply; and credit will never be denied whilst it is likely to be repaid with profit. He that trusts one whom he designs to sue is criminal by the act of trust: the cessation of such invidious traffic is to be desired and no reason can be given why a change of the law should impair any other. We see nation trade with nation where no payment can be compelled.

Mutual convenience produces mutual confidence and the merchants continue to satisfy the demands of each other though they have nothing to dread but the loss of trade."

This argument was against imprisonment for debt as the worthy Doctor saw it in his own time, but it is just as convincing to-day about our own or any other form of imprisonment for debt. It goes to the principle and the root of the matter and, like many another of his best sayings, is the knock-out blow on the subject.

Further, we have proved in our own country the beneficial effects of the abolition of imprisonment for debt, and other countries have set us the good example of doing away with it altogether. In Germany they have a strict system of enforcing judgments against well-to-do debtors who seek to cheat their creditors, a cla.s.s to whom we are somewhat indulgent, allowing many fraudulent persons to live at the expense of tradesmen by the simple expedient of putting goods in their wife's name. But this procedure is not available against working men, and the result is that they have to pay their way as they go along. Dr. Schuster, an English barrister and a Doctor of Laws of the University of Munich, explained the German system of debt collecting to the Commission of 1908. Not only did he make it clear that the German workman had, in the absence of imprisonment, acquired habits of thrift that our system discourages, but he pointed out that the insurance funds against sickness and accident, the trades unions, the co-operative societies, and charitable relief, enabled a German working man to tide over bad times without hanging a millstone of debt about his neck as he has to do in this country.

In the same way in France there is no imprisonment for debt for the poor, and so far from the French admiring our debt-collecting system in England they think it so expensive and futile that French traders absolutely give up all hope of recovering small debts in England and prefer to write them off as bad. And, indeed, I have more than a suspicion that if one could get an accurate financial history of the collection of a forty s.h.i.+llings'

debt in the County Court by means of imprisonment for debt, one would find that, when Treasury fees, solicitor's costs, and creditor's time wasted had been duly paid for, there was very little balance to credit in the plaintiff's ledger. The more one sees of the system the more is one convinced that it is only serviceable to those creditors who use it in a wholesale manner to recover undesirable debts.

And though in theory I can find no serious argument against the abolition of imprisonment for debt, yet there is one practical difficulty in carrying it out which will have to be faced. The County Court registrars in the small courts are unfortunately paid by fees on the number of plaints issued. A moneylender or tally-man who cleans up his books once a year and brings into Court a few hundred plaints automatically raises the salary of the registrar. If this debt-collecting business is swept away, compensation for the disturbance of these salaries that have been calculated on this basis for many years must certainly be made. Probably it is this real practical objection that stands between the debtor and freedom.

I am not alone in thinking that the time is fast coming when the inconvenience of having as the registrar of a Court a solicitor in private practice paid by fees on the number of plaints will be so fully recognised that the country will demand a sweeping alteration in the system. The abolition of imprisonment for debt will give the Courts time to entertain jurisdiction for divorce and other matters where the poor are ent.i.tled to the same legal favour as the rich. When these reforms are made it will be found necessary, I believe, that the registrar of each Court or group of Courts should be a whole-time permanent official.

One other point remains to be mentioned. It is commonly said of those who desire to abolish imprisonment for debt that they have a lower sense of honesty than their opponents, that their views tend to encourage the man who runs into debt and will not pay when he can. For my part I care not how strict the law is made against dishonesty and debt resultant from dishonesty, but let the imprisonment be imprisonment for dishonesty and not for debt. If the debtor has acted criminally, let him be tried in a criminal court and punished for dishonesty. In the old days a County Court judge had powers to imprison for dishonesty, now he has only power to imprison for debt.

It is because I believe that the abolition of imprisonment for debt will improve the character of our citizens, as it improved the character of the Athenian citizens more than two thousand years ago, that I have put in so many hours overtime in the advocacy of its abolition. But whilst I would abolish imprisonment and should like to see the English workman paying his way like his German brother, whilst I am eager to see the poorer cla.s.ses freed from the misery that debt and extravagance brings upon them to-day, yet no one, I hope, recognises more clearly than I do the sacred duty of a debtor to pay an honest debt. Every penny that he can save after his first duties of maintenance of wife and family should be devoted towards the repayment of debts. But this is a personal obligation on a man, like speaking the truth, or treating mankind with courtesy, and, in a word, is only a branch of the golden rule of doing to others as you would be done by. The breach of this obligation ought not, as it seems to me, to be treated nowadays as more than a case of a flagrant breach of good manners, and I would rather imprison a man who forgets to shut a railway carriage door when he gets out on a winter night than a man who omits to pay me the five s.h.i.+llings he borrowed yesterday. Both are ill-mannered fellows and must be dealt with socially, but not, I think, by imprisonment. Debt, except from misfortune, is really "worse form" than drunkenness. When that is generally understood no Debtors Act will be necessary.

And the right feeling of a respectable debtor towards his creditor seems to me stated in very apt and beautiful words by old Jeremy Taylor in one of his "Prayers relating to Justice," in which he sets out the correct pet.i.tion to be made thus: "And next enable me to pay my duty to all my friends, and my debts to all my creditors, that none be made miserable or lessened in his estate by his kindness to me, or traffic with me. Forgive me all those sins and irregular actions by which I entered into debt further than my necessity required, or by which such necessity was brought upon me; but let them not suffer by occasion of my sin."

And if all debtors were moved by the aspirations included in this n.o.ble prayer, and if all creditors refused credit to poor folk unless they believed them to be men of such a character that the ideas of the pet.i.tion were really living in their hearts, then, I think, there would be no need of imprisonment for debt or for County Court judges either. Indeed, the millennium would be at hand. But short of that great day, we are surely ent.i.tled to act as though the majority of mankind preferred right action to wrong action and not to encourage a cla.s.s of debtors and creditors whose _nexus_ is force and imprisonment rather than friends.h.i.+p and goodwill. The working man should be able to say with Piers Plowman: "Though I should die to-day, my debts are paid," and the law should help him to that end.

CHAPTER V

WORKMEN'S COMPENSATION

Your Plea is good; but still I say, beware!

Laws are explained by Man--so have a care.

POPE: "First Satire of Second Book of Horace."

An interesting volume might be written about historical litigants and their deeds of heroism. There was the dour Coggs who let in his friend Bernard over the brandy cask, there was the astute Scott who never paid Manby, the draper, for his wife's dresses, there was Wigglesworth who built himself an everlasting name in the Hibaldstow trespa.s.s case, and the hero of our own time, d.i.c.kson, who actually bested a railway company in the matter of Dutch Oven, the tail-less hound--these and many others are names enshrined in our dusty tomes of law, but if you would read them for mere delight, has not Sir Frederick Pollock done our leading cases into the most melodious verse.

If I were a bencher I would like to promote a pageant of these grand old litigants in honour of their service to the English law. I think my favourite among them all is little Priestley, the butcher's boy. You will find his simple story in the third volume of "Meeson and Welsby." How many know that it was at the Lincoln Summer a.s.sizes of 1836 that the brave butcher's boy began it, and started a train of legal thought reaching out to the workmen's compensation system of to-day?

It was Priestley's duty to deliver meat, and one day Fowler, his master, sent him out with such an over-load of beef and mutton that the cart broke down and poor Priestley broke his thigh. Priestley brought an action against his master, and the jury gave him a verdict for one hundred pounds, but on appeal the judges would not have it, and so poor Priestley never got it. A servant, they said, is not bound to risk his safety in the service of his master; he may decline any service where he apprehends injury to himself.

Lord Abinger, C.B., who presided in the Appeal Court, admitted that there were no precedents either for or against such an action, but he was hard put to it to explain in legal terms why the little butcher's boy, who was certainly a brave explorer into legal hinterlands, was not to be allowed to peg out the claim the jury had awarded him. His Lords.h.i.+p was driven back to "general principles." The most learned lawyer of our day, the late Mr. Danckwerts, once said to me when I was a very young man at the Bar and talked glibly in consultation about the "broad grounds of truth and justice": "If we have nothing better to rest our case on than that, G.o.d help us in the Court of Appeal." He then proceeded to show me some cases on the subject which my ignorance and inexperience had failed to discover.

And it was not that the great man was not a lover of truth and justice, but that he knew that law meant, not what he and I and our client thought to be truth and justice, but what all generations of calm thinking men outside the dispute ought to think to be truth and justice, and that was to be found in the decisions in similar cases which he knew as no other lawyer ever did and about which I showed the common ignorance of my contemporaries.

Lord Abinger, then, having no cases to guide him, played a lone hand, and naturally played it from the point of view of the man who held the cards.

If, he said, the master be liable to the servant in an action of this kind the principle of the liability would carry us to an alarming extent. For instance, if a master put a servant into a damp bed or a crazy bedstead or gave him bad meat to eat he might be liable in damages to his servant.

"The inconvenience, not to say the absurdity, of these consequences,"

afforded a sufficient argument against poor Priestley and all other servants in like case. Priestley broke his leg and lost his case, and legal history does not record his future career. But, though Lord Abinger was against him, he might fairly have said in the phrase of a celebrated and eloquent Manchester surgeon that, "This day he had lighted a candle which would bring forth good fruit."

Several minor heroes made legal efforts to get behind this judgment, but the judges were too many for them. It was strongly endeavoured to make masters liable to their servants for injury caused by the negligence of a fellow servant, but the judges declared that, when a servant enters a service he contemplates all the ordinary risks of his work, including the negligence of his fellow servants, and that allowance is made for this by the master in fixing his wages. This "doctrine of common employment," as it was called, was, of course, largely a figment of judicial imagination, and it set back, or rather kept back, the hour of industrial reform for more than one generation.

There never really was a law of that kind. It is what is rightly called judge-made law. The judges said that it was "inconvenient" and "absurd"

for masters to be responsible for negligence of their servants. So, of course, it was--to the masters and in 1836 that finished the matter. Thus it came about that in a railway accident, if it was caused, let us say, through the negligence of the company's signalman, every ordinary pa.s.senger got compensation out of the company, but the engine driver, the stoker, the guard, and their widows and orphans got nothing. Note, however, that if the signalman had belonged to another company it would have been quite otherwise.

In the old days when Druids sat under oak trees I daresay judge-made law was all very well, though no doubt the personal prejudices of the Druids were manifest in their decisions. But since the days of the Ten Commandments it has been recognised that statute law, carefully considered and simply expressed and written down on tables of stone or otherwise, is a better-cla.s.s article for ordering the affairs of a modern community.

No doubt the judges of 1836, being men connected with the upper middle cla.s.ses of the day, could not conceive how civilisation and social order could exist side by side with a wicked system whereby a master had to compensate a workman injured in his service. The thing was as incomprehensible to the judicial mind of that date as the fifth proposition of Euclid is to many a third-form schoolboy to-day. Some of our judges are still in the third form in their ideas of sociology. That is one of the dangers of judge-made law. It is bound to put the stamp of old-fas.h.i.+oned cla.s.s prejudice on its judgments. If the judges had been labour leaders they would have discovered an implied contract for the master to pay compensation with equal complacency.

The fact is that _natural justice_ is merely justice according to the length of the judge's foot, as the common saying is. And the length of a judicial foot will depend on the evolution of the judge. That is to say, according as he and his ancestors have rested their feet cramped in pinched shoes under the mahogany of the wealthy or tramped barefoot along the highway in the freedom of poverty, so will a judge's principles of natural justice favour the rich or the poor.