We cannot get away from the fact that our judges make a great deal of law.
The idea that a law is somewhere in existence and that the judges merely adopt it will 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 law in the time of Richard Coeur de Lion on the liability of a telegraph company to the persons to whom a message was sent?" The answer to this question is obvious.
When one reads from time to time of decisions of the Courts that are upheld for a generation and finally overruled it is against the truth to speak of a pre-existing code of laws which the judges merely administer and expound. And the reason this is not openly acknowledged and that this mysterious 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 which were not in existence and were therefore not knowable by the parties when the causes of controversy occurred. It is the unwillingness to face the certain fact that Courts are constantly making _ex post facto_ law." This is why we maintain the fiction of the continuous pre-existence of law.
The fear among those in authority seems to be that it would be unwise to openly recognise the real extent of the judicial power, as it would be unpopular and widely rebelled against, and that under the soothing fiction of the existence of an imaginary body of law and by the constant humble a.s.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, and also in the interpretation of statutes, judges were not only declarers of existing law but makers of new law, then it would be possible to discuss and perhaps control or direct the law-making power of latter-day judges which from time to time manifests itself in unbalanced social judgments.
When the telephone was invented by Alexander Graham Bell, the Postmaster-General of the day claimed that it was a species of telegraph within the meaning of the Telegraph Act, 1869. Scientifically, of course, it was no such thing. Economically and in 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, and, if the affair had gone to a parliamentary commission, his words would have had weight and a Telephone Development Act might have brought about excellent results. In that case the future of the telephone would have been settled by parliamentary law.
It was, in fact, settled by Mr. Justice Stephen in 1880, who declared that the telephone was a telegraph within the meaning of the Telegraph Acts, 1863, 1869, although the telephone was not invented or contemplated in 1869. In this way its proper development in this country was arrested for more than a generation. This is a remarkable instance of judge-made law.
Why should an individual citizen just as unversed 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 otherwise ordained. Is it not becoming time when judges, instead of making new and often reckless law, should be satisfied with declaring that in the case before them there is no law to their knowledge, and it is for the Legislature to consider and enact some. If this had been Mr. Justice Stephen"s decision in _The Attorney-General v. The Edison Telephone Co. of London, Ltd._, how much better for all of us to-day!
Again, in the Workmen"s Compensation Act, Parliament, it is known, intended and desired to express many things which the judicial interpretations of the Act have altered and amended out of all recognition. It is scarcely true that these interpretations are all of them due to the verbal inaccuracy of the parliamentary draftsman, because one often finds the Court of Appeal taking one view of the meaning of the words and the House of Lords another. The real parliamentary object of the Act is now very difficult to understand 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 in this country, nor are we likely to have, but, all the same, if we were to recognise the law-making power of our judges and openly discuss it and endeavour to define and limit it, there would be less fear in the future of a rupture between the people and the judges when futurist laws of far-reaching social reform come to be administered by the Courts. The lamentable failure of consistent interpretations of the Compensation Acts is not calculated to raise the judiciary in the affections and respect of the working cla.s.ses.
This matter is really one of grave importance, for though in a sense and up to a point, whatever a judge decrees is for the time the law--that time may only be short. In the end the law must express the wills of those who rule society. Professor Vinogradoff well says, in that excellent little treatise "Common Sense in Law," we ought to "realise that law has to be considered not merely from the point of view of its enforcement by the Courts: it depends ultimately on _recognition_." When, then, we openly confess that 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 wisdom. The more the judges can keep to the real administration and interpretation of laws already existing the better for everyone, but new points of difference and a new social order of things naturally bring before the judges cases which can only be decided by their making new laws. When it is freely acknowledged that this is so, not only the community but the judges themselves will be called upon to consider and decide the ideals and principles by which they ought to be actuated in their capacity of lawgivers.
The law that was laid down to meet the case of the butcher and his boy became the law under which every railway servant, every miner, every mechanic, every navvy--the huge industrial army working under impersonal boards and committees of limited liability companies--risked his life in his daily work at his own expense. From 1836 to 1880 men were killed and injured by the thousands in industrial work and there were no pensions 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 att.i.tude against the poor in this matter and, as things stood, it was to no company"s interest to spend their money and decrease their dividends by safeguarding the lives and limbs of their servants. This is still so in America, where on the railroads one man is killed for every two hundred and five employed and one is injured in every nine. "War is safe compared to railroading in this country," is the comment of Mr. Gilbert Roe, the American jurist.
Of course, at all times much was done by private charity of employers and others to help those who fell in the industrial fight.
In great colliery, shipping, or railway disasters subscriptions were made, no doubt, just as they are to-day, but the little obscure cases that mount up to many thousands in the annual statistics of the industrial killed and wounded were left to chance and charity.
The Employers" Liability Act of 1880 gave certain workmen limited rights of action in special cases. It was a prudent conservative measure brought in 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 lawyer"s fees. Every case under the Act was fiercely litigated, and might go from the County Court through two Courts of Appeal to the House of Lords.
I do not like to write ill of the poor statute. It is not actually dead, but moribund, and in the years gone by, when we were both young fellows I had 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 more than the man in the gallery did about the bride when the minister asked, "Who giveth this woman away?" "I could, guv"nor, but I ain"t going to."
But when we come to the Workmen"s Compensation Acts that is another matter altogether. The County Court judges have never received a penny for the extra work thrust on them by these Acts, and therefore there can be no indelicacy or indiscretion in speaking one"s thoughts plainly about the system.
And of the idea, and to a great extent of the achievement, of Mr.
Chamberlain"s scheme--for to him must the praise and honour be given for bringing it about--one cannot speak too highly. The theory at the bottom of it is exactly the opposite of the theory at the bottom of the judges"
decision against poor Priestley. It is best put in these memorable words of Mr. Asquith:
"_When a person, on his own responsibility and for his own profit, sets in motion agencies which create risks for others, he ought to be civilly responsible for his own acts._"
That is the Magna Charta of workmen"s compensation. It cannot be better stated. And the promises and intentions of the new Act were splendid. For Sir Matthew White Ridley said 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. Mr.
Chamberlain pointed out that up to then, in 1897, only 12 per cent. of accidents were dealt with, but that he hoped that now the other 88 per cent. were to be brought in.
His plan was so simple. An injured man in certain trades had only to ask for compensation, and receive it according to a fixed standard. State-paid doctors and 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 another name the old principle of contributory negligence." A man was to receive compensation when injured in the service, even if he himself had been negligent.
I often think if Mr. Chamberlain had had health and strength to see the workmen"s compensation business properly through he would have dealt with the lawyers who mangled his excellent scheme much as Theseus did with Procrustes when he met him on the 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, and if his legs were too short he pulled them out to the right length. Procrustes had the calm judicial mind of the Court of Appeal, and within his narrow limits knew exactly what he wanted to do and how to do it. But it was rough on the traveller.
And it is rough on a humane, simple, wise scheme for the benefit of the poor on leaving the hands of that great reformer and statesman, Mr.
Chamberlain, to find that it is 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 for Mr.
Chamberlain, and he would have severed their connection with the workmen"s compensation business as Theseus severed Procrustes" connection with the bedstead business.
It is certainly not putting it too strongly to say that the judicial body, speaking generally, did not love the Workmen"s Compensation Act. The idea at the base of it that a man should compensate another outside the scope of contract or wrong was to them out of harmony with the English law.
There never was a more honest or single-hearted judge than A. L. Smith, who was Master of the Rolls when the earliest cases came up for decision in the Court of Appeal. The social creed of "A. L." was something between that 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 intentions of Mr. Chamberlain and those who had pa.s.sed the Act. This one can only trace to the habits of mind and social creeds of judges like "A. L." who were wholly out of touch with the beliefs and hopes of industrial democracy. The Act of Parliament ought not to have been sent to the Court of Appeal at all. It was not founded on any legal principle, it was an insurance scheme that wanted business men to work it, and, as Mr. Chamberlain had foreseen, lawyers and litigation could in no way a.s.sist its working.
It cannot be gainsaid that the legal history of the Workmen"s Compensation Act is not a thing for lawyers to boast about. No one has a greater respect for the Court of Appeal--and, indeed, for all my spiritual, legal, and worldly pastors and masters--than I have. Humility towards those who are called to any honour amongst us is my foible. I admit I have but a 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 G.o.d, 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 Compensation Act, but, speaking as a common arbitrator who has to work the Act at first hand and make it human food for shattered men and widows and orphans, they have not tended to make my task easier, they have not simplified and a.s.sisted the scheme as a compensation scheme, and they have not been in harmony with the spoken intentions of the author of the scheme.
This, I think, to be due, in the first place, no doubt to the imperfections of the Act, in the second, to the fact that the appeals come before learned 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 place, to the fact that to much of the higher judicial intellect the theory of workmen"s compensation is in itself unscientific, and therefore repugnant.
Nearly all the cases, and there are, I regret to say, many, where the Court of Appeal has overruled the County Court, and the County Court judgment has ultimately been restored by the House of Lords, 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 scheme that Parliament has made to compensate the injured. After all, the Act was one for the compensation of workmen, and every case of injury that is found not to be provided for is a blot on the scheme.
The expense of all these appeals, is of course, a terrible burden, and to a workman without a trade union behind him would be impossible. Great confusion has been caused by having to work certain matters for considerable periods under decisions of the Court of Appeal that have afterwards had to be dealt with differently by decisions in the House of Lords. Very likely 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 workmen"s compensation cases should be removed from the Court of Appeal is that they cannot be heard within a reasonable time. The _Law Journal_ of June 13th, 1914, states that there are seventy-three workmen compensation appeals waiting to be heard, of which no less than ten were entered in 1913. It would be interesting to know how the appellants manage in the interim.
The Act itself was difficult enough no doubt to make into a good working scheme by those who desired to do it; the hundredweights of handsomely published and learnedly edited reported decisions as to what it really means have made it hopelessly impossible to comprehend and increasingly difficult to administer.
To sum up the position of the Act to-day, with its myriad encircling decided cases, one can only say, with the immortal Sergeant Arabin, that it "bristles with pitfalls as an egg is full of meat."
When you have an Act of Parliament that in at least a dozen reported cases is solemnly decided to mean _x_ in the Court of Appeal and _y_ in the House of 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 there is so much difficulty about construing the Act if the Courts would all steer by those excellent sailing directions of Lord Halsbury and Lord Davey.
Lord Halsbury said:
"The broad proposition, of course, was that the Legislature intended that there should be compensation given to every workman in certain trades when an injury happened to him in the course of his employment."
Lord Davey said:
"I entirely agree with what has been said by my n.o.ble and learned friend on the Woolsack that you ought to construe this Act so as, as far as possible, to give effect to the primary provisions of it."
Now the primary provision of the Act was to compensate workmen for injuries, not to leave them uncompensated, and to do the business promptly and simply. We want more of the spirit of the Act and less of the letter, and 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 got her to fill up the papers necessary, as things are now, to get her case through: "I tell you candidly, Judge, all this filling up of papers and signing things has been more worry to me than the loss of my old man."
And I"m sure she loved her old man--so what must she have thought of us and our Act of Parliament?
There may be some who think that it is almost indelicate to discuss such a subject as the possible fallibility of the higher judiciary. I agree that it is a subject that can only be treated by one imbued with that reverence for existing inst.i.tutions that so happily results from a sane middle-cla.s.s education. Moreover, we cannot shut our ears to the sound of much 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 a.s.siduously looking for and are now successfully finding. Two interesting books written from different standpoints, Gilbert E. Roe"s "Our Judicial Oligarchy," 1912, and Frederick N. Judson"s "The Judiciary and the People," 1913, show the eagerness with which lawyers who have human interests outside the daily problems of their profession are discussing the great questions of the law and the poor.
The judiciary in America is differently chosen from that in this country and in some ways it has greater powers. Its instinct and bias are similar to those of our own judges, but it has not been so successful in instilling into the minds of the citizens a belief in 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 doubt, from circ.u.mstances which do not obtain here. But that the middle-cla.s.s instinct exists on the American bench even more strongly than it does here can be seen in their history of workmen"s compensation which to an English lawyer is strange and confused reading.
The common law of America in this matter is the same as the common law of England. The failure of Priestley, the Lincoln butcher boy, settled the law of America as completely as it did the law of this country. And though different Legislatures have endeavoured in different ways to remedy the grievances of employers, the judges have made this not only difficult, but in some cases impossible. In 1906 Congress, with the approval of the President, pa.s.sed a carefully and well-considered "Employers" Liability Act" relating to common carriers in the district of Columbia. When it came before the Supreme Court of the United States this law was held to be unconst.i.tutional 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 New York to be unconst.i.tutional, because it placed a "burden upon the employer without any compensatory benefit." In America the judges have been able, for reasons that would certainly have appealed to the late Master of the Rolls and many of his colleagues, to cancel popular legislation. This has roused a direct conflict in America on the subject of the law and the poor, and there is a growing feeling that the Courts are not discharging their duty in relation to social and industrial justice. The recall of decisions and the recall of judges are popular cries, and there is much public discussion of such themes.
These things are of interest to us because our laws and our poor come from the same stock and, though we pride ourselves, and I think rightly, on the superiority of our legal machine, yet it is not so perfect that we may not learn something from the troubles and difficulties of our neighbours. If the working cla.s.s 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 Priestley"s way of looking at things, I do not think that anyone believed then or believes now that he gave his judgment in any unrighteous cla.s.s spirit adversely to the rights of Priestley and mankind. On the contrary, I think he did his best. He expressed what he and his fellows believed to be the law.
This idea of "bias" in judges is well worth a little consideration. We have not the same problem that America has about our judiciary and, let us hope, we never may have, but no one who knows the working man can fail to have observed that he has been, as he would say, colourably--I modify the adverb--"colourably fed up" with several recent judicial decisions.
It has certainly become too common a thing in England to grumble about our judges, and to say--especially when the costs are taxed and the bill is delivered--that the judge was bia.s.sed. But let us remember that it is our birthright to grumble. To grumble, as c.o.x 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 const.i.tution, the three-year-old that fails to carry our money to the winning-post, and the stewards who disqualify him when he does. And when we grumble at our judges and say there is bias on the bench it is only our little way.
For what is "bias"? I have never been able to make out why the word should have a sinister meaning. Bias--as all good bowlers know--is that mysterious weight within a good "wood" or bowl whereby the skilful is enabled to direct it by an arc-like 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 bias make the glory of the green. By means of bias scientifically used we may reach "the mark" by the circuitous "round peg," or play straight up against "the watershed," as I once heard a geologist among bowlers describe the slope of the green.
What grave problems have to be judicially decided on the green as to the use of "thumb" or "finger" bias before the "wood" is delivered! What anxiety is pictured on the face of the bowler! What contortions of his body are involuntarily indulged in as the bowl speeds on its way and does--or more often does not--carry out the intentions of the bowler!
And therein, I think, lies the secret of the evil meaning we have given to the word "bias." We see our "wood" careering across the green and hear it fall with a dull 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 world surrounding it, the word "bias" has come to be regarded as a tendency that leads astray rather than a tendency that keeps straight and is up to "the mark."
And when I am asked whether there is bias on the English bench, I cheerfully reply that I hope and believe there is. I have met with unbia.s.sed bowls, and very poor "woods" they were. I have met with men almost devoid of bias, and I never found that they were continuously up to the mark. Bias is as essential 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 human beings, with likes and dislikes similar to ours, trained to hear and determine our disputes and honestly endeavouring to decide the cases without fear or favour. When judicial bias carries the judgment beyond "the mark" we grieve not that the bias is there but that it has been injudiciously used.
From the true bowler"s point of view there is only one bias, a bias towards things, but in our vulgar misuse of language we speak of a bias against things. And if that is to be allowed no one would grudge a poor working judge his right to a bias against fraud and dishonesty, greed and oppression. Such a bias 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 bias towards purity and a high ideal of man"s conduct towards woman was so little under control that in cases, and especially criminal cases relating to these affairs, it was very difficult for him to conduct the case with justice to the accused.
His bias against the sin over-rode his judgment of the crime.
The same bias is more often found in juries. I remember a case in which my father, Serjeant Parry, defended a man named Smethurst, charged with the murder of his wife. He was admittedly guilty of bigamy, and so incensed were the jury with his misconduct that their bias carried 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 committed. No one will contend that a bias against immorality is not a good bias and a good a.s.set in the character of a judge and a man. But the best bias in the world will not aid you in attaining "the mark" unless it is directed by body and brain working together in harmony.