The gospel and the law

Front matter

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Contents

CHAPTER PAGE I CONCERNING THE GOSPEL I

II AUTOBIOGRAPHICAL 23 III THE EVOLUTION OF THE COUNTY COURT 54 IV THE sTORY OF IMPRISONMENT FOR DEBT 72 V THE SCREW SYSTEM 94

VI THE WORKMEN’S COMPENSATION ACT:

Chapter I

“But deep this truth impressed my mind Through all His works abroad The heart benevolent and kind The most resembles God.”

Rosert Burns. A Winter Night.

Tue object of this book is to explore the dark places of the law in relation to the poor by the light of the Gospel. It does not claim in any sense to be a religious treatise, but law must be based on some principle, and the man in the street like Sir Thomas Browne rather assumes that it is, or ought to be, based on some idea of righteousness.

Mazzini used to say there were two things essential to the realisation of progress, “the declaration of a principle and its incarnation in action.” I accept the principle of Gospel teaching as it is generally understood among reasonable people, and then proceed to inquire how far the general principles of right action stated in the Gospel have been in Mazzini’s phrase “incarnated in action” in our statutes and procedure relating to the affairs of the poor.

It has been suggested to me that a better title

I for the book would have been “Christianity and the Law”, but to my mind this would have been misleading, though I confess the thought of it is tempting to the legal mind on account of many excellent precedents that point to its adoption.

For it was Sir Matthew Hale in Taylor’s case who said: “Christianity is parcel of the Laws of England” and this phrase has often been repeated with approval. But Hale used it as an authority for the proposition that “to reproach the Christian Religion is to speak in subversion of the Law.” Taylor was a feeble-minded lout with a foul tongue. He was found guilty of blasphemy and sentenced to stand in the pillory at Guildford, where he had blasphemed, and also at Westminster, Cheapside and the Exchange.

Now most people to-day would agree that such a brutal method of punishment is not in accordance with the teachings of the Gospel and therefore Hale’s dictum is not really of much service tome. Every form of Christianity would no doubt claim, as the Law claims, to be founded on the teaching of the Gospel. Those who practise the necromancy of spiritualism or the magic of faithhealing, those who dissent from their neighbours in exclusive sects, and the great churches of England, Rome and the East, are all forms of Christianity. But a mere believer in the Gospel has no right of entry, as such, to any of these mutually exclusive ecclesiastical clubs, and logically can only join one of them by agreeing to hate and detest the remainder.

But when we speak of the Gospel and the Law instead of Christianity and the Law we are outside these melancholy sectarian quarrels. Whatever we may believe about a sacrament, a word unknown to our English Bible, we should all agree more or less that the Gospel in the widest and most popular sense merely means the glad tidings of the teachings of the Master, and that these teachings are to be found in the Sermon on the Mount, the Lord’s Prayer and the sayings and parables of the Master which are set down in the Books which we call the Gospels.

This somewhat primitive and childlike faith I derive from my earliest teachings in the blessed days of good Queen Victoria. I fancy that most people’s religious notions, such as they are, find their source in similar natural springs. In the pleasant twilight of second childhood one drifts back to the dreams of the earlier childhood. For me the Gospel of my home was the teaching of the Master about right action and decent behaviour. There was no recitation of creeds, and Sunday was in every sense a holy day. The Gospel therefore I regarded, and still regard, as setting down a standard of right living, whilst the history of the churches, who have sought to use it merely as a basis of right-thinking, though exciting and entertaining, does not help me to solve the problems of life. The creed of St. Athanasius, the Origin of Species, Frazer’s Golden Bough and Sidney Hartland’s Primitive Paternity, are all beautiful and learned dissertations. But when it comes to deciding which, if any, is the truth, the whole truth and nothing but the truth, I remember with pleasure the precedent set by that sensible stipendiary Gallio who refused to waste the

4. THE GOSPEL AND TAE LAW time of the Court over irrelevant and futile matters entirely beyond his comprehension.

Many religions provide kindred mysteries for their devotees. Mithraism has a Feast of the Nativity, a Sunday, an Adoration of Shepherds, a Baptism and a Last Supper, but Mithraism has no Gospel of peace and goodwill, and that is the new note in the Gospel which was absent from the gamut of earlier religions and moralities. The right action or righteousness of the Gospel was of a different nature to anything that had gone before in its insistence on unselfishness. I remembered a passage in an old sermon of Charles Kingsley, which, rather luckily, I have found again, in which he says: “The old Romans who were a stern legal-minded people, used to say that righteousness meant to hurt no man, and to give every man his own. The Eastern people had a better answer still which our blessed Lord used in one place, when he told them that righteousness was to do to other people as we would they should do to us: but the best answer is our Lord’s in the text: “Thou shalt love thy neighbour as thyself.’ ”

Now the question that has haunted my mind for many years is, do we base our law or procedure on any form of righteousness whatever and if not how otherwise? There is a notion among some religious folk that the Gospel is the copyright of their particular creed, and that it is in the nature of sacrilege or desecration for a layman to pray it in aid of his own views of what is ill or well with the world. That matter was to my mind settled at the time of the Reformation and since then the Gospel in this country is no longer the property of a tied house. The Gospel has certainly been put to many strange uses, and perhaps many will think it could be put to no stranger use than to direct the affairs of inferior courts of justice. But if you are convinced that this Gospel provides the best guidance man has yet received for his conduct in life, is it not common sense that it should be used as a foundation upon which to build the laws which you and your fellow-citizens are called upon to administer and obey?

I do not propose to labour this point further because unless my reader is in agreement with me about the practical use of Gospel teaching in the matter of legal reform the rest of this book will be of no interest to him whatever. For, as I have said, I propose to make an enquiry as to how far the existing law in relation to the poor is based upon the Gospel and how far it is practicable to bring it into nearer relation to the teaching of the Master. And I propose to devote my space wholly to laws which directly affect the poor, in the first place because the Gospel seems to me to be very clear and certain about our duty to our poorer neighbours, and secondly because for thirty-three years most of my time has been spent in settling the affairs of the poor and I know something about the business which I believe is worth setting down before I pass away.

Not that I would have anyone think that I hold that the Gospel is only serviceable in framing law and procedure for the poor. I think it should be the foundation of all law and I do not find the legal philosophers have anything better to offer. The quarrels of jurists are about as valuable reading as the disputes of theologians. Each one is after a sound theoretical basis on which to build his laws. One refers to right action, another to the immutable laws of good and evil, a third to the law of Nature, and one of the best of them coins that dear old phrase “the greatest happiness of the greatest number.” I studied the books of the jurists with deep interest many years ago, not because I mistook them for Gospels or enjoyed their style but because I had to pass an examination in their subjects. I remember now with pleasure that John Austin, who was certainly not the least of these philosophers, was quite content to take as one of his bases of law those portions of the word of God signified to men through the medium of human language which we call the Gospel. But indeed all writing on the basis and origin of law comes to much the same thing and in many forms of words merely tells you that law to be any good to mankind must be founded on what mankind believes to be right.

Perhaps the English jurist who accepted the idea of the Gospel origin of the law with the most simple faith was Andrew Horn who compiled The Mirror of Justices some time before 1328 when he died. The book was not printed until 1624 and since then has been the subject of much legal comment.

Horn’s first book deals with “Sins against the holy peace” and herein he tells us that “the law of which this summary is made is extracted from ancient customs warranted by Holy Writ, and because it is given to all in common it is called the common law.” And he has a quaint idea that the purpose of the law and the practices of the judges is to lead citizens into paths of right action, “by love of peace and chastity and temperance, and by friendly admonition towards mercy and good works.”

Andrew Horn was a fishmonger and therefore a layman and had puritan leanings and a vivid imagination so that much of his history is fiction and many of his leading cases are mere legends. Horn was Chamberlain of the City from 1320 to 1328 and for many years made collections of statutes, charters and other legal documents. Professor Maitland, Horn’s learned commentator, admits that the fishmonger could write straightforward annals and was a rational observant man, alive to the value of public records. A great deal, therefore, of what he copies out is, no doubt, genuine enough, though Maitland does not hesitate to say that some of his stories are wilful falsehood and to suggest that his puritanism and religiosity may be all cant.

Maitland was a very learned man but I fancy his humanity peeps out in his acrimony towards Andrew Horn. It must be annoying to a professor of law to find a mere fishmonger producing such a best seller in the legal book markets as The Mirror of Justices. Coke, who in his day was reckoned a sound lawyer, thought a lot of Horn’s book and quoted him with judicial approval. I expect Maitland, who knew more about it than anyone else, is right in his criticism, but the book interests me because I find myself

8 THE GOSPEL ‘AND “Towra in sympathy with a lot of Horn’s ideas. For instance, in writing of the criminal law he tells us that “the poor man who to escape starvation takes victuals to sustain his life, or a garment to prevent death by cold, if thereby he saves himself from death, is not to be adjudged to death, if he had no power to buy or borrow, for such doings are warranted by the law natural.”

I am very doubtful whether this was ever good common law acted upon in our criminal courts, but I thoroughly approve of Andrew Horn setting it down as a guide to justice, and it is refreshing to know that at the beginning of the fourteenth century there were writers on law who were eager to mitigate the rigour of the law in favour of the poor. Horn may not have actually stated what the law was, but he had a shrewd idea at the back of his mind what it ought to be. Now one of the beauties of our common law is that it is always possible that a new generation of judges will cease to declare what it is, and will have the courage to declare that it is what it ought to be.

A famous instance of this occurred in the Jackson case in 1891. For many centuries the lawful right of an Englishman to control and correct his wife was never doubted. It was part of the common law and was upheld in the first instance, in the Jackson case itself, by Mr. Justice Cave and Mr. Justice Jeune. When, however, the affair came before the Appeal Court, Lord Halsbury swept away the mouldy precedents which safeguarded the right of a husband to beat his wife, merely saying that such authorities “are not, I think, now capable of being cited in a court of justice in this or any civilised country.” In the same way at an earlier date Lord Mansfield decreed that slavery was “so odious” that it could not have a place in English Law. Both these are historic incidents of judges using their powers to bring the law into harmony with higher ideals or, in other words, to gospelise the law.

And Andrew Horn had a great deal to say about our usages and customs which make up our common law, and in his fifth book he deals with abuses of the law, that is to say, decisions of judges and acts of bureaucrats which are frauds on the law and repugnant to right and not avowable by holy writ. In the forefront of these is the very modern complaint that the subject has no practical remedy against the injustice of the bureaucrats who act in the name of the Crown. “The first and sovereign abuse is that the King is beyond all law, whereas he ought to be subject to it, as is contained in his oath.”

Horn in the fourteenth century resented the orders in council, or whatever they were then called, and preferred the decision of a judge in open court to what Lord Hewart has described as “the edicts or orders of anonymous and mysterious young gentlemen, however ingenious, who are hidden somewhere in government offices and speak in the name of this or that department.” The inhumanity of-many departmental decrees and the impossibility of obtaining justice against secret authorities above the law is as sovereign an abuse to-day as it was in the days of Andrew Horn.

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And in Horn’s days the real masters of the government were the Civil Servants of the time. This is pointed out by Professor Tout in his interesting lecture on “The English Civil Service in the Fourteenth Century.” “The bureaucrat,” he says, “was as active and vigorous in the fourteenth century as he is in the twentieth.” He was a clergyman or “clerk” learned in the civil and common law but not especially the common law. The common law belonged to the schools of law in London where men could study for their profession without becoming “clerks.” Whether Andrew Horn studied law in the London schools or not, his ideals of right and his definition of abuses show that even in the fourteenth century there was a feud between the common law and bureaucracy.

Whoever writes the history of our law anew will have to consider the researches of Professor Tout, and he will find that the civil servants were the first owners of our Chancery Courts and other legal institutions and that the system of fees and costs varying “between perfectly permissible presents and open and shameful corruption” is a damnosa hereditas from the clergy and clerks who ran our courts in early days. Their nepotic methods of appointing judges and civil servants remained with us from the fourteenth century until the days of the Barnacle family. Nor has it entirely disappeared in our own day, for Professor Tout notes with amusement that: “There were innumerable medieval instances of the sublime method of appointment still prevalent in subordinate posts in the law courts, by which, we

CONCERNING THE GOSPEL II are told, it happens that at present (1915) of nine chief officers of the King’s Bench seven are relatives of judges, and of the eight clerks of Assize five are sons of judges. It would be impossible to draw from contemporary politics a more happy and complete survival of the Medizval Mind.” The fact that for many centuries the Exchequer and the Chancery and the civil government of the country was in the hands of monks and “clerks” and that bureaucracy is still hampered by the traditions of its forbears, is sufficient to explain why the teaching of the Gospel has had so little influence in modifying the pagan cruelty of the law. For though there were many pious good souls among the medieval “clerks,” as there are to-day among the bureaucrats, their attitude towards the Gospel has always been that it was dangerous to the community for the lower classes to know too much about it, and that however richt it was, as a rule of individual life, it was both unsuited and irrelevant to the week-day necessities of politics, law-making and legal procedure. When you find that Andrew Horn’s official world was not so very different in spirit from the world of to-day it is easier to follow the intent and meaning of his book. Historians, who write as though civilisation——by which they mean railway trains, motor-cars, typewriters, gramophones, etc. —has much influence on the spiritual outlook of human beings, deceive themselves and their readers. From the point of view of the Gospel the bureaucracy and the law courts of the fourteenth century were run on much the same lines as they are to-day. Therefore we need not wonder that they caused the same uneasiness in the minds of thoughtful citizens.

Andrew Horn’s complaints sound very modern in a lawyer’s ears. He grumbles about delays in obtaining a hearing, complicated forms of procedure, the exactions of jailers and their fees, their cruelty j in loading prisoners with irons, and of many other unjust and inhuman actions which were not remedied until centuries after his death, and some of these remain in a less virulent form, poisoning the fount of justice in our own day.

And I gather that in spite of his complaints Andrew Horn had on the whole a great admiration for many of the ideals of English justice. When one seeks for better things it is a futile gibe to say you are an enemy of your country because you find imperfections in her institutions.

And in making my enquiry into the condition of our laws in relation to the poor you will not find that because I desire to replace our law and procedure by better things therefore I have no respect and devotion to the existing law of our country. On the contrary, I think it one of the finest systems for the administration of justice that exists, but it is no more perfect to-day than it was in the days of Matthew Hale. There were many humane and righteous judges in his time, but that does not convince me that the sentence in Taylor’s case was in accord with the teaching of the Gospel. I can believe even to-day if a man were to be put in the pillory in Trafalgar Square thousands would go and see him and some would enjoy pelting him. I am certain that if you had a public execution at the Stadium you could sell all

VON CH RINSING THE GCOS PEE 13 the seats and get a big sum of money for the cinema rights. We have no occasion to throw stones at our forefathers of the eighteenth century who enjoyed the brutalities of Tyburn, the cruelties of the pillory and the whipping-post and made up parties to see the women flogged in the Bridewell. In these matters custom has made our conduct outwardly more in accord with Gospel teaching. It is a simple matter for us to see that these old punishments were degrading, but what we must not forget is that to the generation that lived with them they were things to rejoice in and uphold.

The strong, sensible men of the eighteenth century were utterly blind to what was going on around them. This phenomenon is a recurring human decimal in the statistics of sociology. Dr. Johnson, who was a devout believer in the Gospel, and must have read and heard, and indeed known by heart, the Master’s teaching about the brotherhood of mankind and the duty of universal benevolence and charity, really believed that the “poor in England were better provided for than in any other country,” and that the condition of the lower orders was in his day a condition of things which a citizen could be proud of. As to Tyburn, he shook his head and said “the age is running mad after innovations; all the business of the world is to be done in a new way; Tyburn itself is not safe from the fury of innovation.” And when the good doctor talked this nonsense Boswell and Sir William Scott nodded approval, just as you or I would have done, and have often done, when some important old fossil tells us that

I4 DHE, GOS PEL AND THE .LAAy the poor live lives of luxury and that leniency is a terrible error in our criminal courts. I daresay Oliver Goldsmith used to feel sorry for his old friend when he heard him talking nonsense, for Oliver was not a strong sensible man, but more of a poet and a dreamer, and his own outlook on our legal system, that his wiser friends praised, was summed up in the well-known line, which certainly has a.Gospel ring about it, “Laws grind the poor and rich men rule the law.”

And I know that there are a lot of wise writers who will tell you that all lawyers are greedy rascals and that the idea of a lawyer daring to refer his industry to gospel precedents is of itself an impiety. It would be foolish to deny that the texts concerning lawyers in the Scriptures are not pleasant reading. But we must remember that the word “lawyer” was really equivalent to “scribe” and it seems possible that the well-known text, “Woe unto you also ye lawyers; for ye lade men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers,” refers merely to those scribes who were also Pharisees. But in any case, there was in the Master’s day no profession of lawyers or advocates whose duty it was to see that their clients, rich and poor, obtained equal justice in the courts of the country. Such a profession must indeed have had the Master’s sympathy and encouragement since John, as translated by Wycliff, sanctifies the word advocate in the text “We haue auoket anentis the fadir, Jhesu Crist just.” A just advocate, therefore, and one who is ready to help the poor to obtain justice need not, I think, trouble his head very much about what the lawyers did in the days of Herod, or what was said about them.

There was no necessity for a lawyer to behave like a Pharisee, eyen in those days,'and Zenas, the lawyer, receives honourable mention. The trouble with the scribes and Pharisees of old is akin to the trouble to-day of so many of our rulers and governors and bureaucrats, and high priests, and schoolmasters, and upper dogs generally, that they are utterly convinced that they are not as other men are. The unhappy Pharisees were incapable of repentance because their moral health was so obvious and lasting that they needed no physician. That was why they could not receive the Gospel and that is why they outwardly patronise it to-day but do not make use of it. Swedenborg said that “the trouble with Hell is that we shall not know it when we arrive.” And much in the same way the trouble with the Pharisee is that he does not know what a Pharisee he is.

In any case, a great many of the lawyers of to-day have no touch of the Pharisee about them, and spend much of their time pulling asses out of pits, tempering the wind of the law to shorn lambs, and other similar tasks approved of by - the Gospel and its teachers.

There is this, too, to be said in defence of

cribes and Pharisees, that their education had brought them up in the belief that their form of religion and ideas of behaviour are the only right ones. It is impossible for a Pharisee to understand that the poor have any real grounds of complaint for the woes of their daily life. In the same way, a patriotic Englishman firmly believes that no country in the world has anything to teach him in matters of social conduct. We all share with the Pharisee in some degree a human immunity from appreciating the condition of things by which we are surrounded. It is this which makes social reform:so difficult. This blindness of comprehension about human affairs can scarcely be called an infirmity. It is rather a natural endowment arising out of and in the course of our human development and attributable to and ageravated by the teachings of our godfathers and godmothers.

For we arrive in the world little visitors knowing nothing much about it and we are brought up to believe that everything that has been going on for the last few centuries has been for the best, and the tired old ones who are leaving us are never tired enough to leave off telling us that they have made every possible reform that it was safe and advisable to make. In the few years of hustling life, and in the scanty hours that he can spare from earning his daily bread, the average citizen has little time and opportunity to investigate the social system of which he is a unit, or to understand how or why the wheels of the world machine are grinding unevenly. When we read of the horrors of two or three hundred years ago, it should not be to cast a reproach against our fathers, but rather to learn who were the men and women who moved the world of that day to see things as they were. These glorious spirits have enabled us to enter upon our inheritance free from the worst degradations of the past and we may best render them thanks and praise by learning to follow their example.

I make no doubt that most of us are much like old Fynes Moryson, who, being an ordinary average Englishman, saw the everyday horrors of his own country, but was in no way impressed by them, yet was moved to grave indignation at the wickedness and cruelties of foreigners. Truly the seventeenth century Turk was a cruel beast. Moryson tells us with honest reprobation, but in gruesome detail, of the Turkish methods of impaling, where a “man may languish two or three days in pain and hunger if torment will permit him in that time to feel hunger, for no man dares give him meat,” and of casting down malefactors to pitch upon hooks and other nameless horrors. Yet if he had been in London on October 19th, 1615, and dropped into the Guildhall, he might have heard the Lord Chief Justice of England, the great Coke, using much persuasion to Richard Weston, who, being accused of the murder of Sir Thomas Overbury, stood mute, refusing to plead.

Coke and his brother judges, having failed to persuade the wretched Weston to utter a plea of not guilty, the Lord Chief Justice repeated for his benefit the law of England at that date, and reminded him that the prisoner who wilfully stood mute must undergo the peine forte et dure, the extremity and rigour whereof was expressed in these words, “Onere, frigore et fame.’ “For the first,” continued his Lordship, “he was to receive his punishment by the law, to be extended and then to have weights laid upon him no more than

18 THE GOSPEL ANDO THE Laat he was able to bear which were by little and little to be increased. For the second, that he was to be exposed in an open place near the prison in the open air, being naked. And, lastly, that he was to be preserved with the coarsest bread that could be got, and water out of the next sink or puddle to the place of execution, and that day he had water he should have no bread, and that day he had bread he should have no water; and in this torment he was to linger as long as nature could linger out so that often times men lived in that extremity eight or nine days; adding further that as life left him so judgment should find him. And therefore he required him upon consideration of these reasons to advise himself to plead to his country.”