The Law and the Poor Part 13

Thus we can remember cases where lady shoplifters were discovered by eminent physicians to be suffering from some extraordinary form of neurasthenia--not insanity, of course--but one of those nervous breakdowns that made an acquittal and a rest cure in a nursing home the only appropriate course. Magistrates seem to grasp the medical facts about these well-to-do unfortunates almost too readily; but had it been a drunken woman s.n.a.t.c.hing a pair of boots from a shop-nail in the street no eminent physician would have diagnosed her peculiar form of neurosis. Even if her husband had tendered evidence that of late the poor lady had been strange in her manner, he would scarcely have been listened to with much sorrowful attention. The good magistrate would have felt bound in the interests of the poor tradesman to make an example of this criminal. Such cases are not cases for acquittal, and the rest cure is generally three months hard.

There are certainly too many cases where the wealth and position of a prisoner leads to favoured treatment in the Criminal Courts. I am glad to note that these are always pilloried in the Press and publicity is given to them, and in a way nothing could be better because it is the open door that has done so much to keep our courts free from the taint of any suspicion of real corruption. I firmly believe that when these cases do occur they are generally the outcome of a spirit of humanity on the part of the presiding judge coupled to a certain extent by a cla.s.s feeling of tenderness on account of the terrible downfall of a man or woman in his own social position. Such cases, too, are rare. No special note is taken of any case where the law takes its ordinary course and the rich criminal is treated in the same way as his poorer brother. These are, of course, the great majority, and there are also many cases I am glad to know where leniency and mercy is extended to the poor criminal and he is helped by societies and personal aid to regain his position among honest men.

But with all this the poor man can point to too many instances where rich hooligans running amok with a motor car in Regent Street or a.s.saulting the police on a racecourse are let off with a fine. Here is a curious case from the London Sessions that is bound to cause a lot of talk in the mean streets. A fashionably dressed young man was indicted in an admittedly false name, and was allowed to use it for the purpose of the proceedings, and pleaded guilty. He had obtained a sable stole, value 40, from a costumier in Shaftesbury Avenue by false pretences. He had opened an account at Oxford. He received a cheque book and then withdrew his money and closed the account. He used to obtain goods which he paid for with cheques on the Oxford Bank, and cheques to the amount of 5,241 6_s._ 3_d._ had been returned marked "no account." A detective said he was a young man leading a fast life. The city police had a warrant for him for obtaining a ring value 145 and a gold watch 15. These articles it is true were returned. The Oxford police had a warrant out for him and when arrested he was attempting to obtain a valuable fur article in Dover Street. His counsel urged that his parents were people of respectability and integrity who had suffered losses, and the young gentleman was trying to keep things going in the same style he had been accustomed to, and had come under bad influences. That is the whole story, and the report ends, "the defendant was bound over, the magistrate remarking that there was no need to cause his relatives to suffer by mentioning his name."

How many poor men and women whose children have been taken away from them for long terms of years to a reformatory or sent to gaol for months with hard labour, to the knowledge of all their neighbours, will read that report, and what will they think and say of the justice of our criminal law? One pities the parents and relatives of this particular young criminal waster as one pities the parents of all children and the children of all parents when one or the other bring disgrace or ignominy on the home--but why is this one particularly undesirable swindler to be allowed the privilege of an alias in an indictment, and why is his name alone among all the prisoners arraigned at the Sessions to be kept from the world? And how hard it will be on some youngster of like criminal tendencies when he comes before a court where harsher methods prevail, and he finds that not only is his name brutally noised abroad, but offences of this character are deemed worthy of imprisonment.

One would not wish to say a word against leniency to the young however much it may savour of cla.s.s-tenderness, but the concealment of a criminal's name on his trial because his parents are well-to-do and respectable, is just one of those things that the poor people treasure up and quote as an instance of the law's unfairness. At a time when every effort should be made to impress on the poor the impartiality of the law little cases of this kind, arising no doubt from motives of kindness and humanity, are exaggerated and quoted as typical of our criminal administration--which a.s.suredly they are not.

In cases where the whole of the resources of the State are against the prisoner fair play demands that everything that can be done for him without detriment to the demands of justice should be done. In a case of murder which created a great sensation this year, the whole evidence turned on ident.i.ty. Several witnesses came to the police and said they had seen the victim, a child, in company of the prisoner. Other witnesses had stated to the police that they had seen the victim in company with a woman. During the examination of the police inspector in charge of the case he was asked by the defence for these statements, the magistrate expressed his opinion that they should be shown to the solicitor for the defence, but the counsel for the Crown, a gentleman of very wide experience, "suggested that the proper thing for the solicitor for the defence to do would be to go and see the people."

I do not for a moment say that the learned counsel was inaccurate in his statement of a legal proposition. It may be that such is the law; but if it is what does it mean? The police have honest statements of citizens in their hands suggesting that a man has committed murder, they have equally honest statements from other witnesses that the murder has been committed by a woman. However mistaken they may believe the latter statements to be, surely fair play demands that the prisoner should have access to these statements for what they are worth. After all he is at present to be deemed an innocent man, he is not even committed for trial, and he is a citizen with as much right to the protection of the police as any other.

If they have statements going to prove his innocence he ought to have access to them and be told who has made them so that he and his solicitor can see how far they help to prove his case. But no, that is not the official view. Counsel for the Crown no doubt states it correctly. The proper thing is for the solicitor for the defence to go about at the expense of the poor man he is defending and find these people out and take statements afresh. It is a denial of justice, the man has not the money to do it, his solicitor is not a charitable inst.i.tution, and even if he were he probably has not money and staff for such work. In this particular case the whole of the police had scoured London for evidence to clear up the mystery. Surely when a citizen was charged with the offence public interest demands that the matter that has been discovered that goes to prove innocence should be as readily available as matter that goes to prove guilt. The present practice is to my mind a tradition, handed down from the bad old days, that needs to be swept away. We ought to free our criminal law from any shred of suggestion that the State is out to obtain a conviction rather than an acquittal. The State is only interested in the truth and justice of the verdict, and a true verdict obtained by methods of injustice is a crime against the community.

Much might be said on the inequality of punishments. The question of the advisability of corporal punishment is one upon which people hold strong and conflicting opinions. I am not a sentimentalist on this subject. I am told by some quite sane and scientific thinkers that for men, women and children of the hooligan cla.s.s who have a mania for violence and destruction it is probably the most appropriate form of punishment. Its good qualities are that it is cheap; it is soon over, but irksome whilst it lasts; and it is said to appeal to the homeopathic instincts of the hooligan cla.s.s who recognise the justice of meeting violence by violence.

Against these positive merits it is very unequal in its incidence; one victim will suffer more than others over the same punishment; and it is brutalising, in some measure, to the flogger and floggee. Too much may be made of this last argument, for nothing can be more brutalising and deadening to all hopeful and better instincts than long terms of imprisonment.

On the whole, my instinct is against flogging, because I am an optimist and believe that though it has had its uses in the past as an educative influence we have come to a state of civilisation when we should abolish if possible all violent or cruel punishments. There was a lot perhaps to be said for thumbscrews in their day, but that day is admittedly over. My grumble about the cat-of-nine-tails and the birch is not so much that the law should put them in the cupboard once and for ever, but that if they are to be used at all, their lashes should, like G.o.d's good rain, descend on rich and poor alike.

Take the crimes for which flogging is permissible punishment to-day. For adults there is garrotting, offences under the Criminal Law Amendment Act, procuring, etc., and being an incorrigible rogue. For lads under sixteen, stealing and malicious damage.

Now the first objection to these punishments is that whether flogging is or is not to be administered depends altogether on the taste and fancy of the presiding Judge. Some think it is an advisable form of punishment; others view it with disfavour. This element of human lottery in the administration of the law should surely be kept under as far as possible.

Out of a hundred and forty-five criminals convicted of robbery only three were flogged. An intending robber therefore who studies judicial "form" in the statistics will see that it is about fifty to one against the cat, and if he is the one unfortunate surely he has a distinct grievance against the forty-nine lucky blackguards who escape.

When only three criminals receive this punishment in one year it is worth while considering whether it should be continued, or, if it is to be continued, whether it should not be extended to crimes against women and children and other nameless horrors. Highway robbers to-day are all of the lowest and the poorest, but in the other category of crime there are sometimes men of means who find their way into the dock.

If it ever comes to be recognised, as Butler in his beautifully prophetic account of the land of Erewhon would have us believe, that crime is a disease and should be treated by a family Straightener, as we now call in the doctor, then all doubts as to corporal punishment will disappear. The Erewhonians when they had lapsed from the path of honesty took, under their doctor's advice, a flogging once a week and a diet of bread and water for three months on end with the same heroism and resignation with which we undergo a cure at Harrogate after a London season. Once recognise that the birch rod is a cure for dishonesty, violence, and malicious injury to property, then all sensible men and women afflicted with these tendencies would welcome the cure and visit their Straightener as they now visit their dentist.

But at present we are far from the realisation of these sane, clear-sighted dreams. Flogging, as the law uses it as a punishment to-day, is not used, I fear, merely as a remedy or even a deterrent but rather by way of revenge. It is almost wholly used against the very poor and degraded. Even under the White Slave Act, I cannot remember any case in which it has been used against a well-to-do man. In any case it is only available against the actual procurer and not against the landlords, ground landlords, restaurant proprietors, and dressmakers, who knowingly share in the woman's earnings and live on them.

Flogging may, or may not, be an advisable form of punishment, but if it is to be used, let it be administered automatically and without fear or favour to all beasts and blackmailers and hooligans, be they rich or poor.

At present the chances of a rich man being flogged for his wickedness on earth are about the same as those of the camel with an ambition to loop the needle.

CHAPTER XI

THE POLICE COURT

_Squeezum._ The laws are turnpikes, only made to stop people who walk on foot and not to interrupt those who drive through them in their coaches.

FIELDING: "The Coffee-house Politician."

Act II., Scene II.

When Fielding was made a magistrate for the county of Middles.e.x in 1748 the popular notion of the office was expressed in the nickname, "The trading justice." He was paid by fees and had a direct interest in the prosperity of crime. The fees, moreover, were very small, and it was a recognised thing that he should make his office a lucrative one by methods exemplified by Mr. Justice Squeezum in Fielding's farce. Although the great writer fulfilled the duties of his office with honour, fidelity, and zeal, he has left us in no doubt about the immorality and ignorance of many of his fellow justices. It is a relief to turn from the justice room in Bow Street in the eighteenth century with its rogues and vagabonds on their way to the whipping posts of the Bridewell, and its highwaymen and thieves starting for Tyburn by way of Newgate, and to look on the comparatively civilised picture of a metropolitan police court of to-day.

A century and a half has worked wonderful reforms for us in the world of police and police courts, but one cannot honestly say that nothing remains to be done. Direct bribery is no doubt abolished, justice is fearlessly administered, but there are still traditional methods of imposing fines and imprisonment which cause the poor to think that carriage folk go more easily along the turnpikes of the law than those humble ones who travel perforce on foot.

I am not writing of the police court as the antechamber of the Old Bailey.

In relation to the grave crimes against society we may fairly boast that rich and poor are treated much alike. But the police court in matters within its own jurisdiction is a machine for teaching better manners to the poor. It is a somewhat harsh machine, perhaps, but in the main just and necessary at the present state of our evolution.

When folk are naughty and violent and ill-mannered and ultra-selfish, and become a nuisance to their neighbours, the police, if they are poor, take them in hand, but if they are rich they are dealt with differently. Unless they are so extravagantly and absurdly naughty as to become a public as opposed to a private nuisance, there is no necessity for the police to tackle the rich. When two "lydies" go for each other in the gutters of Whitechapel the police step in, but when the same thing happens in Mayfair, society--with a big S--maintains its own discipline.

The reason why rich folk are not so outwardly naughty as poor folk is very much a matter of education and environment. As Lord Haldane in his valuable speech in America explained to us, there is a "system of habitual or customary conduct, ethical rather than legal, which embraces all those obligations of the citizen which it is 'bad form' or 'not the thing' to disregard."

Thus in the days of Sir Anthony Absolute it was "bad form" not to get drunk after dinner, and it was "not the thing" to refuse to fight a duel.

These laws of conduct were not enforceable before magistrates, but they were laws all the same, and rich people dared not disobey them for fear of being "cut" by society.

And as the years roll on better education, better housing, better wages, and less of that repressive Sabbatarianism that drives the poorer youngsters into natural mischief will make the police court less and less necessary as a school of manners. The conscience and good manners of all cla.s.ses attain a higher ideal every day, and the only reason the rich arrive at a better standard of outward manners than the generality of the poor is that they have been caught young and made to practise at it for generations. It is not a matter ent.i.tling them to praise, but we are out to set down and discuss facts, and undoubtedly it is so.

For instance, you would expect an Eton boy to play better cricket than a St. Andrews caddie, but the caddie would probably beat the other's head off at golf. It is environment that does it, and the lesson to be learned is to improve in every way the material surroundings of the poor to the utmost of our ability. Meanwhile the police court seems to me as necessary a part of our equipment as a sewage works or an ashpit.

Crime is not only a matter of heredity and education, it is also a question of geography. This geographical distribution of crime is an intensely interesting subject. You will find that Cardigan, for instance, is the whitest county in England and Wales for crimes of all kind, whether against property, morals, or of a violent character. Glamorgan, on the other hand, is only beaten by Monmouth in records of crimes against property; in crimes of violence Glamorgan is easily first; in crimes against morality Glamorgan again is only beaten by Dorset, Berks, Lincoln and Huntingdon, the latter taking the 1905-09 record very comfortably.

Monmouth, happily, in this latter cla.s.s of crime is in a far better case than her neighbour.

If you can trace the history and causes of different crimes in different districts I believe you may hope to sterilise a county of certain crimes by moral sanitation and stamp them out just as we have rid counties of typhus and the plague. In dealing with uncivilised crimes of mischief and destruction we should always bear in mind that the poor who do these acts are very often only human beings who have not been cultivated up to modern standards. Some crimes are traditional in certain districts, and the imitative faculty being strong in criminals, heredity and mimicry work together to cause a certain historicity in crime.

Magistrates and others do not sufficiently study this. Patriotic county officials loudly deny what everyone who reads the Judicial Statistics knows to be true. In discussing the Edalji case I pointed out that to anyone who studied the history of crime it was far more likely that such crime would be committed by a native of the county than by a gentleman of Pa.r.s.ee descent. This seemed to annoy some ardent Staffordshire folk, but there is no reason why it should. Killing and maiming the cattle of others is a very ancient pursuit and has only recently been regarded as criminal.

The wicked man in the Bible was often threatened with the destruction of his cattle. No doubt the righteous man was encouraged thereby to take upon himself the duty of avenging his wrongs by destroying his wicked neighbour's cattle, and the wicked neighbour, believing himself to be the righteous one, retaliated in kind. Certain it is that in border countries we always read of cattle raiding and killing and maiming, and perhaps one reason why Staffordshire is old fashioned in the cattle-maiming business is that it was a border country, and in the good old days the lords and squires raided cattle and destroyed their neighbour's farms and boundaries, and these antiquated habits remain with some as natural instincts of revenge.

In early days such acts were not considered criminal. The only malicious injury to property known to the English common law as a crime was arson.

It was not until the time of Henry VIII. (37 Hen. VIII., c. 6) that it was discovered that there were "divers sundry malicious and curious persons, being men of evil and perverse disposition and seduced by the instigation of the devil, who, to d.a.m.nify the king's true subjects went about burning frames of timber ready to be set up and edified for houses," and broke down dams and moats or cut away lead pipes, or barked apple trees, or cut out beasts' tongues, which seems a very ancient and horrible form of maiming cattle. The penalty for these latter offences was the inadequate fine of ten pounds.

In 1722 came the Black Act which made it felony without benefit of clergy to "unlawfully or maliciously kill, maim, or wound any cattle." In 1861 a Malicious Damage Act (24 & 25 Vict. c. 97) was pa.s.sed, codifying all the law relating to such offences, and that is the Act under which Mr. Edalji was indicted.

I have worked out the geographical statistics of cattle maiming in England for forty years, from 1861 to 1900, and they are extremely interesting. In the first place it is well to know that the total number of such crimes is rapidly decreasing. In five years, from 1865 there were over a hundred cases; in five years prior to 1900 there were less than fifty. The counties, which total more than twenty cases each, are York, Suss.e.x, Middles.e.x, Lincoln, Lancashire and Staffordshire. Somerset and Gloucester have nineteen cases, but Gloucester has only one case since 1882 and Somerset only six cases since 1870. Surrey has only eleven cases, and only five occur since 1870. Anglesey and Westmoreland have only one such charge each during the whole forty years. In the case of Staffordshire, in the twenty-two cases taking place from 1861 to 1900 fifteen cases had taken place since 1877, and there is never a clear five years in the period without a case.

In 1903, when the Wyrley outrages took place, it seems to me that a county with this history would have been sensible to look at home for the criminal. In counties such as Somerset and Surrey, where the offence seemed then to be dying out, the same considerations would not apply.

Whereas in Westmoreland or Anglesey the expectation would be that the crime was committed by a stranger. I do not think it would be wise to press these speculations too far, but at the same time I think magistrates and police might make greater use of the wonderful statistics that are collected and published by the State at such great expense and learn useful lessons from them in their daily business.

Whilst we condemn the horrible savagery of such crimes it is only fair to remember that the law does not punish them for their cruelty, but only for their injury to property. Prevention of cruelty to animals is a far more modern branch of law, the beginning of which dates from 1822. When Lord Erskine moved his Bill against Cruelty to Animals in 1811, so absurdly sentimental did it seem to the a.s.sembled peers that they drowned his speech in a chorus of cat-calls and c.o.c.k-crowing. It is well to remember when measuring punishment in the police courts that there are individuals and cla.s.ses existing to-day that are scarcely more civilised than the lords and barons of a hundred years ago.

The feudal lords and their henchmen did many things in the good old days in their quarrels with their neighbours which to-day would bring them before the justices. They wounded with intent, they did grievous bodily harm to anyone who annoyed them, and they did as much malicious damage to property as seemed in their own eyes a fair set off for insults had and received. Among a certain small degraded cla.s.s in our own country these traditional pleasantries of the country-side are not fully recognised to be crimes. There are a set of men among whom it is not "bad form" to commit these acts. This form of atavism requires not only pity but further and better repression at the hands of capable police.

As long, therefore, as we have these hereditary tendencies to crimes of violence and selfishness, the police court seems to me to meet a felt want. I can imagine a better world without any police court, just as I can imagine this world with a better police court.

But I should like to see imprisonment kept entirely for evil-doers, and that side of the police court work which consists in rate collecting and semi-civil proceedings transferred elsewhere. At present many are sent to gaol in the police court for the crime of poverty. In the cases of non-payment of rates or of orders on parents to pay subscriptions to industrial homes it seems a very bad policy to send a poor man to prison.

It takes a man from work, it does not produce money, and it throws a family into the workhouse.

In these cases there is no pretence of proving a man's means and sending him to gaol because he can pay and won't. No such evidence is necessary.

The man goes to prison because he is poor and has not the money to pay. If the State thinks fit to put a man's child in a reformatory, one would think it might stand the expense of it, without ruining the home by imprisoning the father because he cannot subscribe towards his keep.

With regard to orders for maintaining a separated wife, or affiliation orders, everyone would have less sympathy with the man who is sent to prison for not paying these. But if a man has not the money he does not make any in prison, and what these poor women want is regular weekly money.

These are special cases in which I think power to attach a man's wages up to a certain percentage would be a just and reasonable proposition. Such a law might be unpopular with mankind, but it seems fair to the women.

Whether it would tend to increase or decrease maintenance and b.a.s.t.a.r.dy orders I have not the least idea.