The Law and the Poor Part 6

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 shillings 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 shillings 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 fashion 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.

When the worker has a living wage guaranteed him by the State it will be necessary to make him a new bankruptcy law so that the living wage cannot be attached and converted to the use of the Shylocks of this world. The law protects the infant and the idiot from the results of their own foolishness, and we shall find it advisable in the future to extend similar protection to the grown-up idiots and infants who are all too prevalent in the world. Antonio was a normal business man, but he was no match for Shylock, and, though no lawyer can approve of the way in which the Courts treated Shylock, the real lesson of the story is that laws are necessary to protect Antonio, the fool, from Shylock, the knave.

In order, then, that the full blessings of bankruptcy may be made available to the poor, we must certainly tackle the problem of the living wage, which to my mind is the most urgent social question of our time. So many things seem to hang upon it. Rent, taxation, education, physical and moral improvement, eugenics, all the social discussions of the time, land you back on the question of the living wage. Sometimes, I think, we are on the eve of a new era when every capable honest citizen will have the same right to a living wage that he now has to free board and lodging and stone breaking in the workhouse. I would rather have a legal right to a living wage than a vote, unless I was clear that I could use the latter to obtain the former and many better things to boot.

As a matter of dull, dry, literary history all the prophets and singers and poets, from King David, Isaiah and Jeremiah down to Carlyle, Kingsley, Ruskin, d.i.c.kens and Tom Hood, have said or sung the praises of the living wage. There are many who regard Jeremiah as a kind of gloomy dean, but for my part I find him most encouraging. When he says: "Woe unto him that buildeth his house by unrighteousness and his chambers by wrong; that useth his neighbour's service without wages and giveth him not for his work," I think that he is absolutely right on the spot. I cannot believe that it was his view that woe would providentially descend upon the man who paid sweating wages and that it would come in the shape of lions and bears or lightning and earthquakes; on the contrary, I read it, that, in Jeremiah's view, it was the duty of citizens to see that their fellows did not behave like this. The prophet intended to tell us that our first duty was to persuade our fellow citizens employing labour to give their workmen a living wage, but if we could not achieve this by reasoning and exhorting them, then it was our duty to give such anti-social churls statutory woe, just as we mete out statutory woe to the naughty ones who get drunk and beat their wives, and, indeed, for the same social reasons.

David and all his biblical backers were as eager as Mr. Philip Snowden and his Socialist friends to promote the living wage, and, as they put it, to "deliver the poor from him that is too strong for him." That, in a phrase, is the modern problem of the living wage. The trust, the combine, the limited company, the corporation or Government office are bound in the nature of things to become the spoilers of the poor and needy unless there is some power delegated by the State to some judicial authority to "deliver the poor from him that is too strong for him."

But it is not sufficient to cite poetry and Psalms and the "Song of the Shirt"--for then your Thomas Gradgrind comes along--a man of realities, sir, a man of facts and calculations, a man who proceeds upon the principle that two and two are four and nothing over, and who is not going to be talked into allowing for anything over--Thomas Gradgrind shakes his square finger at you and says: "How are you going to do it?" And I agree that Gradgrind is deserving an answer. I do not say we must wait until we convince him, for Gradgrinds are obstinate, stubborn fellows, but we must satisfy the majority that we have a fair answer to his objections and a practical programme to propose. The problem cannot be shirked for ever.

Even in the prophet Carlyle's day it was a matter in regard to which "if something be not done something will do itself one day and in a fashion that will please n.o.body."

And shortly the way in which it will come about is by voluntary conciliation, the erection of joint boards of employers and workmen with a right of appeal to a business legal tribunal--something akin to the Railway Commission--which shall have power to make and enforce a decree to the worker of at least so much of his fair share of an industry as shall amount to a living wage. I can see nothing revolutionary in this proposal.

It really only follows out the trend of modern legislation. If a man has a smoking chimney, or pollutes a river, or goes about in public with an infectious disease, we fine or imprison him for his anti-social misconduct. Surely a man who pursues an industry that does not make a living wage for the workers in it is equally an enemy of the people, to be dealt with as such by the law! As Mr. Justice Gordon laid it down in the Australian Labour Courts: "If any particular industry cannot keep going and pay its workpeople a living wage it must be shut up." Some day that will be the law of England. No one can deny the common sense of it.

A very encouraging sign of the times is that both sides are discovering the uselessness of strikes. In Mr. Snowden's frank words, "a strike never did much substantial gain to the strikers." It is not only that the strike or lock-out is a crime against helpless women and children, that it wastes the substance and savings of employers and employed and embitters their relations for a generation--all that we knew before; the new and comforting message is that the strike does not "get there," it does not succeed, and therefore, as Mr. Snowden says, "just as war between nations cannot be defended either ethically or economically, so labour disputes are indefensible."

And there are other indications that conciliation and agreement in labour matters are to have a fair trial. Already in the railway world an interesting experiment has been made. I have seen enough of it in the working to know that it is not such a spavined animal as some of our political jockeys would have us believe. When the railway conciliation boards were set up the employers and workmen, where it was possible, agreed upon an independent chairman to sit with them in case there was a deadlock. Several boards of different companies invited me to undertake this honourable position. I need hardly say that I fancied myself not a little at receiving such flattering invitations, and meeting a friend, who was an eminent railway solicitor, I told him the news--not, I suspect, without a note of pardonable triumph in the phrasing.

"What!" he cried; "do you mean to say that the companies and the men have agreed upon you as chairman?"

"That is so," I replied, with dignity, being a little hurt at his surprise and astonishment.

"Well, I'm----. However you'll never have anything to do," he added with a grunt of satisfaction.

"And why not?" I asked.

"Because," he replied, with great deliberation, "if they could agree about you they could agree about anything."

I thanked him for the compliment, but, a.n.a.lysing the saying since, I am not so sure that the commendation I accepted was really proffered to me.

Be that as it may, it has turned out to be true. On the few occasions on which my services were required, I have found that things were capable of adjustment and settlement owing to the excellent good feeling on each side and the real endeavour made by everyone to try and understand the other's point of view. This is where the independent chairman is of real service.

In explaining to his virgin mind the difficulties of the case, every point in it has to be discussed and explained anew, and in this way the weaker positions of the argument are made clearer to those who are defending them. Thus it becomes easier to give way about some matter of detail, and concession breeds concession.

Without making too much of my own small experience, it bears out my theoretical expectation, and I am satisfied that a conciliatory court for trade disputes is a live business proposition, calculated to save employers much unnecessary woe, and that if Jeremiah had thought of it, he would have proposed to set one up as a practical step towards the living wage.

Until, then, we have established a living wage for the worker, the question of his bankruptcy is in a large measure academic. At present bankruptcy, like divorce, is rightly regarded as a luxury for the well-to-do. I know that to some minds the word "bankruptcy" connotes poverty, but if you look into the facts and history of the matter, you will find that, though bankruptcy may on occasion lead to poverty, a poor man never does, or can, become a bankrupt.

People fail to the tune of five or six million pounds a year, but when you a.n.a.lyse the list of the insolvent you will not find many poor folk among them. There are lords and gentlemen, solicitors and stockbrokers, merchants and manufacturers, builders and farmers, and butchers, bakers, and candlestick makers.

But the nearest you will find to poor people are lodging-house keepers and coffee-house and fried fish shop proprietors. These are precarious trades, and the working man, being a good sportsman, likes to have a gamble in them with his savings. In this way he joins the aristocracy, and becomes an eligible bankrupt. But the labourer and artisan, the real working men, have no more chance of bankruptcy than they have of election to the Athenaeum or the Carlton.

Bankruptcy is a legal status jealously guarded by the caste to which it belongs. The poor man reads in the paper of builders and merchants failing for their thousands, of well-paid accountants carefully investigating the history of their financial fall; he puts his head into the Registrar's Court and hears an amiable official receiver sympathetically tracing the career of the well-groomed bankrupt in front of him; he sees the judge present the unhappy fellow with a clean slate, from which all his debts are wiped away, and hears him announce to the unfortunate insolvent the date upon which the law will allow him to start becoming insolvent again.

And the working man thinks to himself of the twenty or thirty pounds that he owes, and how pleasant it would be if an accountant would add it up and a judge tell him that he need not worry any more about it; but when he begins to inquire further into the subject he finds that bankruptcy is one of the good things of this world that he cannot afford.

Bankruptcy, successful bankruptcy, is not so easy of achievement as you might think. It is not everyone who knows how to become a bankrupt. There are a lot of big, expensive law books written on this subject by clever fellows who spend their lives soothing the bankrupt's last hours and winding him up according to law and order, with costs out of the estate, but you need not study these to learn how to become a bankrupt. Most bankrupts are pig-headed fellows, and achieve bankruptcy in their own foolish amateur way. They read the books about it afterwards.

To begin with, you certainly want money, or at least an overdraft and plenty of credit. Intending bankrupts generally wear very good clothes; especially are they particular about the shine of their silk hat. Bankers and intelligent business men have, in all ages, given credit to top hats, white waistcoats, and gold watch chains. The poor man has none of these, and therefore cannot obtain that overdraft which is one of the first essentials of bankruptcy.