The Law and the Poor

by Sir Edward Abbott Parry

It was Priestley’s duty to deliver meat, and one day Fowler, his master, sent him out with such an over-load of beef and mutton that the cart broke down and poor Priestley broke 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 Priestley never got it. A servant, they said, is not bound to risk his safety in the service of his master; he may decline any service where he apprehends injury to himself.

Lord Abinger, C.B., who presided in the Appeal Court, admitted that there were no precedents either for or against such an action, but he was hard put to it to explain in legal terms why the little butcher’s boy, who was certainly a brave explorer into legal hinterlands, was not to be allowed to peg out the claim the jury had awarded him. His Lordship was driven back to “general principles.” The most learned lawyer 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 man was not a lover of truth and justice, but that he knew that law meant, not what he and I and our client thought to be truth and justice, but what all generations of calm thinking men outside the dispute ought to think to be truth and justice, and that was to be found in the decisions in similar cases which he knew as no other lawyer ever did and about which I showed the common ignorance of my contemporaries.

Lord Abinger, then, having no cases to guide him, played a lone hand, and naturally played it from the point of view of the man who held the cards. If, he said, the master be liable to the servant in an action of this kind the principle of the liability would carry us to an alarming extent. For instance, 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. Priestley broke his leg and lost his case, and legal history does not record his future career. But, though Lord Abinger was against him, he might fairly have said in the phrase of a celebrated and eloquent Manchester surgeon that, “This day he had lighted a candle which would bring forth good fruit.”

Several minor heroes made legal efforts to get behind this judgment, but the judges were too many for them. It was strongly endeavoured to make masters liable to their servants for injury caused by the negligence of a fellow servant, 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 fixing his wages. This “doctrine of common employment,” as it was called, was, of course, largely a figment of judicial imagination, and it set back, or rather kept back, the hour of industrial reform for more than one generation.

There never really was a law of that kind. It is what is rightly called judge-made law. The judges said that it was “inconvenient” and “absurd” for masters to be responsible for negligence of their servants. So, of course, 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 compensation out of the company, but the engine driver, the stoker, the guard, and their widows and orphans got nothing. Note, however, that if the signalman had belonged to another company it would have been quite otherwise.

In the old days when Druids sat under oak trees I daresay judge-made law was all very well, though no doubt the personal prejudices of the Druids were manifest in their decisions. But since the days of the Ten Commandments it has been recognised that statute law, carefully considered and simply expressed and written down on tables of stone or otherwise, is a better-class article for ordering the affairs of a modern community.

No doubt the judges of 1836, being men connected with the upper middle classes of the day, could not conceive how civilisation and social order could exist side by side with a wicked system whereby a master had to compensate a workman injured in his 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 dangers of judge-made law. It is bound to put the stamp of old-fashioned class prejudice on its judgments. If the judges had been labour leaders they would have discovered an implied contract for the master to pay compensation with equal complacency.

The fact is that natural justice is merely justice according to the length of the judge’s foot, as the common saying is. And the length of a judicial foot will 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 of the wealthy or tramped barefoot along the highway in the freedom of poverty, so will a judge’s principles of natural justice favour the rich or the poor.

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 Cœur 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.