The Law and the Poor

by Sir Edward Abbott Parry

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 institutions that so happily results from a sane middle-class 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 assiduously 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 circumstances which do not obtain here. But that the middle-class 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, passed 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 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 New York to be unconstitutional, 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 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 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 class 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 biassed. But let us remember that it is our birthright 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 constitution, 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.”