The Law and the Poor

by Sir Edward Abbott Parry

Magistrates and others do not sufficiently study this. Patriotic county officials loudly deny what everyone who reads the Judicial Statistics knows to be true. In discussing the Edalji case I pointed out that to anyone who studied the history of crime it was far more likely that such crime would be committed by a native of the county than by a gentleman of Parsee descent. This seemed to annoy some ardent Staffordshire folk, but there is no reason why it should. Killing and maiming the cattle of others is a very ancient pursuit and has only recently been regarded as criminal. The wicked man in the Bible was often threatened with the destruction of his cattle. No doubt the righteous man was encouraged thereby to take upon himself the duty of avenging his wrongs by destroying his wicked neighbour’s cattle, and the wicked neighbour, believing himself to be the righteous one, retaliated in kind. Certain it is that in border countries we always read of cattle raiding and killing and maiming, and perhaps one reason why Staffordshire is old fashioned in the cattle-maiming business is that it was a border country, and in the good old days the lords and squires raided cattle and destroyed their neighbour’s farms and boundaries, and these antiquated habits remain with some as natural instincts of revenge.

In early days such acts were not considered criminal. The only malicious injury to property known to the English common law as a crime was arson. It was not until the time of Henry VIII. (37 Hen. VIII., c. 6) that it was discovered that there were “divers sundry malicious and curious persons, being men of evil and perverse disposition and seduced by the instigation of the devil, who, to damnify the king’s true subjects went about burning frames of timber ready to be set up and edified for houses,” and broke down dams and moats or cut away lead pipes, or barked apple trees, or cut out beasts’ tongues, which seems a very ancient and horrible form of maiming cattle. The penalty for these latter offences was the inadequate fine of ten pounds.

In 1722 came the Black Act which made it felony without benefit of clergy to “unlawfully or maliciously kill, maim, or wound any cattle.” In 1861 a Malicious Damage Act (24 & 25 Vict. c. 97) was passed, codifying all the law relating to such offences, and that is the Act under which Mr. Edalji was indicted.

I have worked out the geographical statistics of cattle maiming in England for forty years, from 1861 to 1900, and they are extremely interesting. In the first place it is well to know that the total number of such crimes is rapidly decreasing. In five years, from 1865 there were over a hundred cases; in five years prior to 1900 there were less than fifty. The counties, which total more than twenty cases each, are York, Sussex, Middlesex, Lincoln, Lancashire and Staffordshire. Somerset and Gloucester have nineteen cases, but Gloucester has only one case since 1882 and Somerset only six cases since 1870. Surrey has only eleven cases, and only five occur since 1870. Anglesey and Westmoreland have only one such charge each during the whole forty years. In the case of Staffordshire, in the twenty-two cases taking place from 1861 to 1900 fifteen cases had taken place since 1877, and there is never a clear five years in the period without a case.

In 1903, when the Wyrley outrages took place, it seems to me that a county with this history would have been sensible to look at home for the criminal. In counties such as Somerset and Surrey, where the offence seemed then to be dying out, the same considerations would not apply. Whereas in Westmoreland or Anglesey the expectation would be that the crime was committed by a stranger. I do not think it would be wise to press these speculations too far, but at the same time I think magistrates and police might make greater use of the wonderful statistics that are collected and published by the State at such great expense and learn useful lessons from them in their daily business.

Whilst we condemn the horrible savagery of such crimes it is only fair to remember that the law does not punish them for their cruelty, but only for their injury to property. Prevention of cruelty to animals is a far more modern branch of law, the beginning of which dates from 1822. When Lord Erskine moved his Bill against Cruelty to Animals in 1811, so absurdly sentimental did it seem to the assembled peers that they drowned his speech in a chorus of cat-calls and cock-crowing. It is well to remember when measuring punishment in the police courts that there are individuals and classes existing to-day that are scarcely more civilised than the lords and barons of a hundred years ago.

The feudal lords and their henchmen did many things in the good old days in their quarrels with their neighbours which to-day would bring them before the justices. They wounded with intent, they did grievous bodily harm to anyone who annoyed them, and they did as much malicious damage to property as seemed in their own eyes a fair set off for insults had and received. Among a certain small degraded class in our own country these traditional pleasantries of the country-side are not fully recognised to be crimes. There are a set of men among whom it is not “bad form” to commit these acts. This form of atavism requires not only pity but further and better repression at the hands of capable police.

As long, therefore, as we have these hereditary tendencies to crimes of violence and selfishness, the police court seems to me to meet a felt want. I can imagine a better world without any police court, just as I can imagine this world with a better police court.

But I should like to see imprisonment kept entirely for evil-doers, and that side of the police court work which consists in rate collecting and semi-civil proceedings transferred elsewhere. At present many are sent to gaol in the police court for the crime of poverty. In the cases of non-payment of rates or of orders on parents to pay subscriptions to industrial homes it seems a very bad policy to send a poor man to prison. It takes a man from work, it does not produce money, and it throws a family into the workhouse.

In these cases there is no pretence of proving a man’s means and sending him to gaol because he can pay and won’t. No such evidence is necessary. The man goes to prison because he is poor and has not the money to pay. If the State thinks fit to put a man’s child in a reformatory, one would think it might stand the expense of it, without ruining the home by imprisoning the father because he cannot subscribe towards his keep.