The Law and the Poor

by Sir Edward Abbott Parry

There are three recent Acts of criminal law reform which have done much to safeguard the interests of innocent men, especially if they are poor. These are the Criminal Evidence Act, 1898, the Poor Prisoners Defence Act, 1903, and the Court of Criminal Appeal Act, 1907. If we could have such an outburst of legal reform every ten years in other subjects we should be doing well. But it must not be thought that these reforms were obtained without trouble. Each was strenuously fought, year by year, for many many years before the energy and patience of the reformers were crowned with success.

One would have thought that the claim of a citizen, charged with a criminal offence, to give his account of the affair to the jury, if he wished to do so, was one of those matters of elementary justice that could hardly be contended against at the end of the nineteenth century, but the fight against this privilege was really a very strenuous one. Twenty years before the reform actually came the Bill had been read a second time in the House of Commons by a majority of 109, showing, at all events, that the lay mind of the country had no doubt about what should be done. In each succeeding year, when any new offence was created by Act of Parliament, there was a special clause put in to enable a prisoner to give evidence, so that at length there were some thirty or more Acts giving a prisoner the right to give evidence. This made the state of the law, as Lord Herschell said, “utterly indefensible and ridiculous.” We were living under two competing systems, whose constant absurdities were made manifest in the Courts; thus, if a man was charged with forging a trade mark he was a competent witness, if he was charged with any other forgery his mouth was closed.

Curiously enough, owing to the irony of our party system, it was the Conservatives who brought in this reform and the Radicals who opposed it. It was left for Sir Richard Webster to point to the progress of all the States of America, and the experience of our Colonies, and to ask that we should not lag behind in the good work of reform. That sturdy radical, Mr. Pickersgill, was shocked, and elaborated the quaint argument that an innocent man should be debarred this privilege lest he might be an ignorant person who would tell lies, and get confused and muddled, thereby prejudicing his chance of acquittal.

A large body of influential legal opinion was adverse to the Bill, and in the division lists voting against the reform you find the names of Sam Evans, John Morley, W. S. Robson, Lawson Walton, and other well-known Liberals. It is one of the crosses that a legal reformer has to bear that only through the services of one or other of the great parties in the State can he hope to see his pet dream materialise and there seems a certainty that, if one party is converted to a proposal, the other party makes a point of being diverted by it. Over and above that unhappy difficulty to progress there is the certainty that the lawyers, as a profession, will always offer a strong opposition to any proposition of legal reform, and, when this is defeated, will fight strenuous little rearguard actions to cripple and delay it.

The Poor Prisoners Defence Act met with less opposition. It was a comparatively small affair, and there were a few fees in it. Mr. Justice Grantham—whose merits as a friend of the prisoner and a humane judge are often lost sight of in remembering his daring dives from the bench into the sea of politics—this good judge was a keen supporter of the movement for the better defence of poor prisoners. He thought the magistrates ought to ask the prisoner what his defence was, and tell him that, if he would state it, they would do all they could to assist him in proving it, and that, if he wanted evidence, they would adjourn the case and get evidence. His ideal was that the magistrate and the police should assist a man to prove his innocence, and that any sort of reasonable defence should be followed up at the public expense.

The letter of the Act, however, only gives the poor prisoner a solicitor and counsel and a copy of the depositions. No doubt the best is done for him that can be under these conditions, but it is not the same quality of legal defence that a rich prisoner can obtain for money. Naturally, counsel who take these cases are not men of the greatest experience, and the defending of prisoners is a difficult branch of the act of advocacy. A story is told of a Scotch prisoner, who had economically pretended he was without means in order to save counsel’s fees, calling out in agony as he heard his defender addressing the jury in a very unconvincing manner: “Young mon, if ye’ll sit doon at once I’ll give ye a feeve poun’ note.” Although the Act is not everything it might be, yet, undoubtedly, it is a move in the right direction and capable, under sympathetic administration, of doing much good.

The Criminal Appeal Act of 1907 has proved itself of such value already that it becomes the more amazing to read of the difficulty experienced in getting it on the Statute Book. All manner of legal interests were banded together against it. One of the two learned king’s counsel who moved its rejection in the House of Commons solemnly declared that the cost of taking shorthand notes and the expense of bringing a prisoner to London from the north of England appalled him and, in his view, “the machinery of the Bill must inevitably break down ... it was absolutely unworkable.” The second uttered mournful prophecies of ruin: “to substitute,” he said, “this most costly machinery for the present system would deprive our criminal Courts of their principal glory in the deep sense of care, caution, and responsibility which was pervading the atmosphere of every criminal Court in the country at the present time.”

Many people seemed to think that juries knowing there was an appeal would take less pains and care in their duties. But a jury in a criminal case is a body of citizens called together on a special and solemn occasion to do a serious duty and the fact of appeal or no appeal would have little effect on their conduct. It was the slackness of some of the judges rather than the possible carelessness of juries that wanted looking to, especially in Courts of country Quarter Sessions where the shorthand writer and the Court of Criminal Appeal were bound to exercise a good influence. Nothing tends to good judicial work more certainly than publicity, a shorthand note, and a strong Court of Appeal easily available.

Although the criminal law has in the main been fairly administered and equally enforced against rich and poor there are certain classes of laws which have often, no doubt from worthy motives, been used as engines of oppression against the poor. Of these the Blasphemy Laws are a standing example. Dr. Johnson tells us that: “Laws are formed by the manners and exigencies of particular times and it is but accidental that they last longer than their causes.” This is not altogether true. The fact is we have no summary machinery for removing decayed and obsolete laws from the Statute book. We want a legal lethal chamber for these old die-hards, these laws against Sabbath Breaking and Blasphemy and other old world wickednesses. A rich man may break as many Sabbaths and blaspheme at his will but he is never prosecuted for it. In the days of that great and good reformer, Charles Bradlaugh, the Blasphemy Laws were made use of to stifle the poor in the expression of their opinions in a very shameless way. Only last year a man was imprisoned under them in circumstances which gave rise to a good deal of uneasiness. He was no doubt an ill-mannered and unpleasant person, but ill manners and unpleasantness are not crimes, and to make use of these old Blasphemy Laws, to lock up the poor blasphemer only, is one of those things that does extensive harm by giving the blasphemer new fuel for his blasphemy, not only against the sacred things he does not appreciate, but also against the law which he finds ready to do injustice for the protection of these holy mysteries.

This again, like many of the things which we may reasonably complain about in what is, as the world goes, a humane criminal law, is one of the matters handed down by our forefathers which we have not had time to set right. In the old days Unitarians and others were burned alive. Fuller in his Church History says: it was found that “such burning of heretics much startled common people, pitying all in pain and prone to asperse justice itself with cruelty because of the novelty and hideousness of this punishment.... Wherefore King James politickly preferred that heretics hereafter, though condemned, should silently and privately waste themselves in prison.” And that is what all heretics ought to do to-day if the law were equally administered, but as a matter of fact these laws are only put in force against poor, noisy people who preach their doctrines in the market place, and are a dead letter against those who preach the same doctrines on hand-made paper bound in morocco. I can quite believe that a bye-law to hinder one man saying coarse and ill-mannered things about another man’s religion in open spaces might be a reasonable police proposition; but there must be free trade in these things and the Established Church must not have a preference. Moreover, such a law must not be extended to pulpits or printing presses or much interesting theological polemics would be lost to us. For the Blasphemy Laws in the twentieth century, protecting only one form of religion and set in motion only against the poor, nothing can be said. Foul language and obscenity can and are punishable in other ways, and the cause of religion is poorly served by being protected by laws which are only set in motion when the well-to-do are annoyed by the vulgarity and ill-manners of the poor.