Part 6 (1/2)
And if it be asked if there are judges on the bench who are bia.s.sed towards or against capital or labour, railway companies, motor-buses, piano organs, Scotch drapers, moneylenders or other products of modern life, I must answer in all honesty that this is very probably the case. A fact that seems to be lost sight of in this insistence on the immaculate judge is that, after all, he is like other human beings, a forked radish with a fantastically carved head quaintly decorated by a horse-hair wig generously paid for by himself out of his slender salary. He is just as much the product of the age as one of yourselves. He has toddled about in the same nursery, learned in the same school, played at the same university and lived in the same society as the rest of the middle cla.s.ses. Why should you expect in him a super-instinct towards futurist sociology?
In the old days when everyone believed in witchcraft the judges believed in witchcraft. Chief Justice Hale solemnly laid it down as law that there must be such things as witches since there were laws made against witches, and it was not conceivable that laws should be made against that which did not exist. It was not, indeed, until the time of George II. that it ceased to be an offence to endeavour to raise the Devil by magic words and oblige him to execute your commands. Nowadays even the Devil himself is in danger of disestablishment, though my conservative views would lead me to maintain that he is still ent.i.tled to judicial notice, and I am inclined to the opinion that he is not yet surplusage in an indictment for perjury.
In every age your judge will be tinged with the prejudices of his time and his cla.s.s, and I cannot see how you can expect to grow middle-cla.s.s judges in hot-beds of middle-cla.s.s prejudices without the natural formation of a certain amount of middle-cla.s.s bias in the thickness of their middle-cla.s.s wood.
Nor do I think among Englishmen anyone resents such bias as your judges display in their everyday life. Mr. Justice Grantham, like ”A. L.,” was undoubtedly a man of strong conservative bias and showed it openly enough upon the bench, but he was adored on a working-cla.s.s circuit, and no man was better beloved by all who practised or appeared before him, and no judge strove more earnestly to do justice. The fact is, bias is recognised among Englishmen as one of the sporting attributes of man and is as necessary to the instruments with which we play the game of life as to the ”woods” in our old-world game upon the green.
If there is any bias on the bench that is popularly and justly disliked it is a bias towards formalism and technicalities. Our law of old got a bad name for that, and in quiet places our reputation still sticks to us.
There are still men and women in the English country-side who think there is some sort of disgrace attached to a law court. In the quiet County Courts of Kent and Suss.e.x a defendant often complains in an aggrieved tone at being brought to a ”place of this kind.” It argues to his mind a want of delicacy in the plaintiff, and he states his case without the least hope that it will be decided on the merits. I remember an amusing expression of this feeling. A defendant, a cheery, round, pippin-faced jobmaster with a treble voice was sued by a farmer for keep of his horses in the farmers' field for several week-ends.
”Well, I'll tell you about it,” he piped diffidently in answer to my request for information, ”for I might as well now I'm here. It was this way. I met Sandy in Crown Lane. I always call him Sandy--you must excuse me if I'm wrong, I've never been in a place like this before--and Sandy says to me, 'Jim, why don't you bring your 'orses down to my field for Sunday like you used to do last year?' Well, I brought my 'orses down on Sunday and I did that for some two or three months and then I took them away, and I meets Sandy and he says, 'Jim, why have you taken your 'orses away?' and I says, 'Because there ain't no food on your field for my 'orses.' He says to me, 'There's more food on my field than your 'orses is used to.' I says, 'Sandy, you know there's no feed in your field for my 'orses.' He says to me, 'If there ain't no feed in my field for your 'orses there's plenty of recreation for them.' 'Recreation?' I says; 'my 'orses don't want no recreation, they gets recreation in the bus through the week.' With that Sandy went his way and we never exchanged another word for three year, and now he brings me to this 'ere place for sixteen s.h.i.+llings and I've never been in a place like this before.”
I explained to the defendant that the County Court was really a place intended for an affair of this nature and thoroughly equipped to see it through, but he was not satisfied.
”What right has he to bring me here?” he complained. ”I never promised to pay him anything.”
”Was there no agreement between you?” I asked.
”Well, we did agree about one thing.”
”And what was that?” I asked hopefully.
”We agreed that if we couldn't settle what I ought to pay,” he replied, eyeing me with doubt and disapprobation, ”that we should leave it to a respectable man.”
Now what he really wanted was a judge full of bucolic bias and well acquainted with vaccine and equine learning. It was only I fancy in a veterinary sense that he considered that I was not respectable.
And nowadays when we open the Courts to new applicants, and turn over great schemes of workmen's compensation to judges to deal with, we want judges to work them who are in touch with the needs and lives of the working cla.s.s, not necessarily folk who want to exalt the poor on to unreal pedestals and clothe them with impossible virtues, but people who know how near their faults and virtues are to those of the rest of mankind.
And when we find American judges deciding that no system of workmen's compensation is to be allowed to become law, and when we note that the most learned judges of our own Appeal Courts differ constantly as to the meaning of the words of our own scheme, thereby causing delay, confusion and expense, it raises a question in one's mind as to whether some far less exalted Court of Appeal--say, three County Court judges who have to try these cases face to face with the men and women who are interested in their decision--would not better meet the wants of the community in carrying out the scheme and come nearer to the ideal of ”the respectable man.” A bishop has once been a curate, but a Lord Justice of Appeal has never been a County Court judge. The Workmen's Compensation Act is a practical business machine of a complicated character, and it is scarcely a sensible thing that the men who have to keep it going should work under the theoretical direction of men who have never seen it working.
And there is another reason why the appeals in these cases should be removed from the Court of Appeal, and that is a very practical one--the Court is over-crowded and has no time to try them. Even now as I write there are cases, many of them perhaps merely questions of the payment of a few s.h.i.+llings a week, which have been waiting for many months to be reached. From the point of view of everyone concerned, except the lawyer, there is no health in this litigation. In so far as the administration of the Workmen's Compensation Act has been a success it has been because insurance companies and employers and trade unions and workmen have either kept out of Court altogether or, when they have got there, have a.s.sisted the registrars and judges of the County Court to work the thing on business lines and have resisted in a large measure the temptation in the uncertainty of the decisions to speculative litigation. There is still enough English common-sense left among us to muddle through most things, but the Workmen's Compensation Act, as interpreted in the Court of Appeal, has tried it fairly high.
CHAPTER VI
BANKRUPTCY
”In a lofty room, ill lighted and worse ventilated, situate in Portugal Street, Lincoln's Inn Fields, there sit nearly the whole year round, one, two, three or four gentlemen in wigs, as the case may be, with little writing desks before them, constructed after the fas.h.i.+on of those used by the judges of the land, barring the French polish.
There is a box of barristers on their right hand; there is an enclosure of insolvent debtors on their left; and there is an inclined plane of most especially dirty faces in their front. These gentlemen are the Commissioners of the Insolvent Court, and the place in which they sit is the Insolvent Court itself.”
CHARLES d.i.c.kENS: ”Pickwick.” Chap. XLIII.
A bankrupt is not a person who breaks the bank, as is popularly supposed.
On the contrary, he is, or ought to be, by his derivation a person whose bank is broken by others. A learned professor tells me that the Florentines of old had some sort of ceremony in which they marched to their insolvent neighbour's office and broke up his bank, or bench, or money table to show the world that he was no longer commercially sound.
Until recently in English law bankruptcy was merely a trader's remedy designed to protect an unfortunate business man from life-long imprisonment for debt resulting from unfortunate business ventures.
Latterly the privilege of bankruptcy has been extended to every citizen that has a debt of fifty pounds and ten pounds to pay the fees necessary to filing his pet.i.tion.
But, in order to become insolvent, it is a condition precedent that at some time or another one should have been solvent. And one difficulty about applying any form of bankruptcy laws to the poor is that they are too often born insolvent, live insolvent, and die insolvent. There must be many fellow citizens in this country of ours who never knew what it was for twelve months of their life to have a living wage and be out of debt.
As long as we have imprisonment for debt credit of some kind and on some terms ruinous or otherwise is always obtainable. At the present, bankruptcy is almost regarded as a sign of grace, a condition of honourable martyrdom into which the careless and good-natured ones of the world find themselves after a short struggle in the slough of solvency. To the rich it is a very present help in time of trouble, but the poor, never having been sufficiently solvent, can never make use of its aid.