Part 4 (2/2)

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.

<script>