The Law and the Poor

ood; but still

ained by Man-

tire of Second

draper, for his wife's dresses, there was Wigglesworth who built himself an everlasting name in the Hibaldstow trespass case, and the hero of our own time, Dickson, who actually bested a railway company in the matter of Dutc

m 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 Lincol

oke 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

er 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, God 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

nce, 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.

ervant, 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 fi

, 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 passenger got co

ds were manifest in their decisions. But since the days of the Ten Commandments it has been recognised that statute law, carefully considered a

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

ll 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

not, I think, hold good for a moment. It is, indeed, a legal fiction. As a great American jurist, Professor John Chipman Gray, of Harvard, asks: "What was the l

rious bogey of pre-existent law is worshipped in our Courts of Justice is, as Professor Gray tells us, that there is an "unwillingness to recognise the fact that the Courts, with the consent of the State, have been constantly in the practice of applying in the decision of controversies, rules

sertion of the judges, that they are not there to make laws, but only to administer them, the man in the street is deceived for his own good. For myself I have grave doubts whether this juggling with facts is to anybody's benefit. If it were recognised that in giving decisions at common law,

the interests of the community it was essential that the telephone should not be handed over to a public department predetermined not to give it a fair chance of development. Lord Kelvin and others pointed out what was the right policy in the matter,

nversed in science and business as the man in the street have the right to enact what should or should not be done with an entirely new invention which was not in existence when the statute which he pretends to apply was enacted. If the judges decided that an aeroplane plying for hire was a hackney carriage it would in law remain liable to all the statutory hackneydom of carriages until Parliament otherw

and ascertain from the language used in the judgments interpreting it. If law were really a science and the interpretations of statutes by judges merely an ascertaining of parliamentary intention, one would not expect to find such different interpretations put upon the same words and the parliamentary intention so openly ignored. In America grave popular discontent has arisen over the law-making propensities of judges and their bold refusal to carry out the intentions of the Legislature. We have no such widespread feeling

our judges are making new law every day we shall have to impress on them-especially in social matters-that the new law they make should be, like new parliamentary law, founded on the best aspirations of modern hopes and thoughts of the future life of our people, rather than on the musty creeds and traditions in which the individual human beings who are judges have unfortunately for the most part been educated. Judge-made law, like any other law, can only be of value to the community by popular recognition of its

for the widows and orphans, no compensation for the wounded. Moreover, such a system discouraged employers from spending money on safety devices. No doubt many good and wise employers did a great deal to safeguard their men; equally no doubt, servants, being but human, were often injured and killed by their own carelessness and recklessness. The deplorable part of it was that the law had taken up an attitude against the poor

rivate charity of employers and others to

t as they are to-day, but the little obscure cases that mount up to many thousands in th

by a Liberal Government, and, of course, it was predicted that it would ruin every industry in the country. It must have cost industry a big bill in

ad many a good outing at the old fellow's expense, and he did me very well indeed. Therefore, of the Employers' Liability Act of 1880 I will say no

ourt judges have never received a penny for the extra work thrust on them by these Acts, and theref

r be given for bringing it about-one cannot speak too highly. The theory at the bottom of it is exactly the opposite of the

profit, sets in motion agencies which create risks for oth

d that the Act would prevent uncertainty, and the parties would know what their rights were, and that it provided a simple and inexpensive remedy and would prevent litigation

d arbitrators were to settle the details of the man's injuries and the amount to be paid to him. In his own words, "We wish to avoid bringing in again under a

banks of the Cephisus. Procrustes, you will remember, was a robber of Attica with a quaint sense of humour and a bedstead. If a traveller asked his hospitality he invited him to the bed, to which he tied him. If his legs were too long he cut them off

being martyred by the Procrustes of the law so that it may fit his narrow bed of justice. I think some of the decisions of the Court of Appeal would have been too many fo

hat of the Church catechism and the Sporting Times. He was beloved by rich and poor. His ideal world was one where a good-natured aristocracy would confer kindnesses on a well-mannered democracy, who should receive them in a jovial and grateful spirit. There is no doubt that he endeavoured, as did all the judges of the Court of Appeal, to rightly interpret its provisions; there is equally no doubt that the spirit of many of the interpretations placed upon the draftman's words did not give effect to the inte

poor stomach for law and that I often find the learned judgments of Appeal Courts a little indigestible, but I remember the Irishman sampling the twopenny racecourse pies, and piously murmur to myself, "Glory be to God, but they're dam weighty." No one would deny the learning, subtlety and weight of the judgments in the Court of Appeal on the Workmen's Compe

ned judges who have never administered the Act in cases of first instance and have had no practical experience of its working, and, in the third pla

, the error has been in the Court of Appeal striving to find a reason to hinder the payment of compensation, rather than searching for the principle which brought an admitted injury within the schem

ikely if there were a further appeal to a House of Archangels the Court of Appeal would be upheld. But to the injured man in the works and the arbitrator waiting to award him his few shillings a week what could be more pitiable and exasperating than the delay and expense that the present method of working the Act entails? One solid reason why the appeals in work

do it; the hundredweights of handsomely published and learnedly edited reported decisions as to what i

ing decided cases, one can only say, with the immortal Sergeant A

f Lords, x representing "against the workman" and y "for the workman," what does the man in the street think about it? And yet I cannot believe ther

alsbur

that there should be compensation given to every workman in certain t

Davey

friend on the Woolsack that you ought to construe this Act so as,

nd a great deal fewer forms and orders and rules. In a word, more business and less procedure. As a dear old lady said to me when, after several efforts to set her affairs right, the registrar and myself had at last g

an-so what must she have thought

discussion about what is called judicial bias by the man in the street. In America the sounds are louder and clearer than they are in England, and the problem is so much the simpler to understand-especially for the onlooker. There are great lessons for us to study if we would avoid the troubles which the American judges have been assiduously looking for and are n

its infallible honesty of purpose. There is no doubt that in America there is a growing distrust of the integrity of the Courts and a feeling that the judges in their sympathies and views are on the side of wealth and against the working man. Much of this arises, no

e United States this law was held to be unconstitutional by five judges as against four. To my mind there can be no comparison between the influence and common-sense of the judgments. The counting of heads was against the statute, but the expression of the contents of the heads showed a resultant force of brain power in its favour. The chief argument of the majority was that some of the clauses of the statute were "novel and even shocking," just as Lord Abinger found poor Priestley's contention inconvenient and absurd. Later on, in 1911, the Court of Appeal found the workmen's compensation legislation of Ne

working class should, even on false premises, come to a conclusion that they could not find justice in our Courts owing to judicial social myopia, it would be a sad day for everybody. For my part, though I quite recognise that there was a bias in the late Lord Abinger, for instance, against poor Pri

our judiciary and, let us hope, we never may have, but no one who knows the working man can fail to have observed that

irthright to grumble. To grumble, as Cox pointed out to Mrs. Bouncer, is a verb neuter meaning to complain without a cause. In England we grumble at all our best beloved-our wife, our children, our weather, our constitut

course towards adjacency of "the mark," which is the historic name of the jack. In Lancashire, where the game of bowls is played, as it should be, upon a crown green-and not, as in the South, on a tame, flat rink-the bias and the use of the b

"wood" is delivered! What anxiety is pictured on the face of the bowler! What contortions of his body are involuntar

ull thud on the path beyond, and instead of blaming ourselves we blame the bias. Thus, owing to the alarming prevalence of duffers on the green and in the greater

ential as character to both "woods" and men. As far as I remember I have never met a judge without "bias" and seldom seen one whose bias was not fairly under control. We want bias on the bench because we like to feel that the men who decide our disputes are not mere automatic legal slot machines, but

as should indeed be instinct in him in the same way as a golfer has a bias against bunkers, a terrier against rats, and a mongoose against snakes. But even a good bias requires strict and cunning control. I remember a very excellent and sage judge-in most matters a cool fountain of deliberate justice-whose

ed them right by the mark of the medical testimony and landed them in the ditch of an unjust verdict of murder. The case was taken up by John Bright, one whose bias against all evil was as strong as any man's. The criminal was ultimately punished only for the crime he had co

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 m

eorge 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 entitled to judicial notice, and I am inclined to the opinion that he is not ye

ly enough upon the bench, but he was adored on a working-class 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

o think there is some sort of disgrace attached to a law court. In the quiet County Courts of Kent and Sussex 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 hi

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 sa

lly a place intended for an affair of this nature and thor

here?" he complained. "I neve

greement betwee

d agree abou

that?" I ask

pay," he replied, eyeing me with doubt and disapprob

acquainted with vaccine and equine learning. It was only I fancy i

judges to work them who are in touch with the needs and lives of the working class, not necessarily folk who want to exalt the poor on to unre

nd 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 o

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 assisted the registrars a