The Law and the Poor

by Sir Edward Abbott Parry

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 unbiassed 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 asset 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.

And if it be asked if there are judges on the bench who are biassed towards or against capital or labour, railway companies, motor-buses, piano organs, Scotch drapers, moneylenders or other products of modern life, I must answer in all honesty that this is very probably the case. A fact 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 much the product of the age as one of yourselves. He has toddled about in the same nursery, learned in the same school, played at the same university and lived in the same society as the rest of the middle classes. Why should you expect in him a super-instinct towards futurist sociology?

In the old days when everyone believed in witchcraft the judges believed in witchcraft. Chief Justice Hale solemnly laid it down as law that there must be such things as witches since there were laws made against witches, and it was not conceivable that laws should be made against that which did not exist. It was not, indeed, until the time of George 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 yet surplusage in an indictment for perjury. In every age your judge will be tinged with the prejudices of his time and his class, and I cannot see how you can expect to grow middle-class judges in hot-beds of middle-class prejudices without the natural formation of a certain amount of middle-class bias in the thickness of their middle-class wood.

Nor do I think among Englishmen anyone resents such bias as your judges display in their everyday life. Mr. Justice Grantham, like “A. L.,” was undoubtedly a man of strong conservative bias and showed it openly 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, bias is recognised among Englishmen as one of the sporting attributes of man and is as necessary to the instruments with which we play the game of life as to the “woods” in our old-world game upon the green.

If there is any bias on the bench that is popularly and justly disliked it is a bias towards formalism and technicalities. Our law of old got a bad name for that, and in quiet places our reputation still sticks to us. There are still men and women in the English country-side who 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 his case without the least hope that it will be decided on the merits. I remember an amusing expression of this feeling. A defendant, a cheery, round, pippin-faced jobmaster with a treble voice was sued by a farmer for keep of his horses in the farmers’ field for several week-ends.

“Well, I’ll tell you about it,” he piped diffidently in answer to my request for information, “for I might as well now I’m here. It was this way. I met Sandy in Crown Lane. I always call him Sandy—you must excuse me if I’m wrong, I’ve never been in a place like this before—and Sandy says to me, ‘Jim, why don’t you bring your ’orses down to my field for Sunday like you used to do last year?’ Well, I 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 says to me, ‘If there ain’t no feed in my field for your ’orses there’s plenty of recreation for them.’ ‘Recreation?’ I says; ‘my ’orses don’t want no recreation, they gets recreation in the bus through the week.’ With that Sandy went his way and we never exchanged another word for three year, and now he brings me to this ’ere place for sixteen shillings and I’ve never been in a place like this before.”

I explained to the defendant that the County Court was really a place intended for an affair of this nature and thoroughly equipped to see it through, but he was not satisfied.

“What right has he to bring me here?” he complained. “I never promised to pay him anything.”