But it would be far more satisfactory if the affairs of smaller people were not litigated, or at all events not litigated until an effort had been made to bring the parties together and get them to agree to a compromise. For think of the cost of much of this small litigation and what it may mean to a working man, and how much ill-feeling as well as hard-earned money would be saved if the parties could be brought together in some Courts of Conciliation or Reconcilement, and were not permitted to go to law until, as a condition precedent, they had been before the County Court judge and satisfied him that there was no chance of a settlement, and he marked their papers “fit” for litigation.
And though many will think this a revolutionary movement, yet in truth it is nothing of the sort. For the idea is as old as the hills—and Paul thought it a disgrace, even to the Corinthians—who were no great class, as I gather—for brother to go to law with brother. What he would have written to Lancashire about the spectacle of three or four brothers and sisters wrangling in the County Court as to who
should pay for their father’s funeral tea—the sensible old man having died penniless—I scarce like to think. Luckily Paul wrote no Epistles to the Lancastrians. For when passions are roused, family feuds are fought with a bitterness that few can understand whose duty has not forced them to witness the wretchedness of it. And the day of awakening comes with the taxation of costs and a sense that all that has been done has been to give way to an orgy of unholiness in a public place and make a great hole in savings laboriously acquired.
But apart from the uncharitable nature of many law-suits let me set down the actual facts of one of the every-day cases which bring debt and ruin upon a home. A man had a dog which bit the child of a neighbour. The child was not greatly injured, but there was a small doctor’s bill to pay and a certain amount of anxiety on behalf of the parents. These people chose solicitors. After a lengthy correspondence a claim was brought for £25 by the parents of the child. Counsel were engaged. Doctors gave evidence on either side. Ultimately the case went against the plaintiff, on the ground that he could not prove scienter, that is to say, that he did not satisfy the Court that the defendant knew that his dog had previously bitten someone else.
Now one need not blame the lawyers. If each party believed in his own case and wanted to fight, the lawyers only did their duty according to the system under which they work. The result was disastrous. Each party was ordered to pay his own costs,
which worked out at something over £15 apiece. In any case, as I remember it, the plaintiff could only have recovered a few pounds, for the damage was but small.
Now Paul’s idea, and a valuable one, was summed up in the question “Is it so that there cannot be found among you one wise man who shall be able to decide between his brethren?” Only I think he overlooked the natural distrust that the average man has of a lay arbitrator. I do not think it would be reasonable to expect two members of a Welsh chapel, for instance, to leave their dispute to a deacon. The deacon knows too much of their inner life to start with, and would be bound to be suspected of partiality in his judgment. Paul’s idea of a Lay Court of Conciliation or Reconcilement was not practical politics in a work-a-day world. But when Brougham took up the idea and tried to get the House of Lords to help him put it into a business shape, one wonders that he got no assistance for so excellent a scheme. His plan was to make use of existing judges as conciliators, and the result of the combined teachings of the Saint and the Lord Chancellor seems to be that what you want is a sensible conciliator who shall also be a State official.
For in the dog-bite affair recorded above—supposing that there had been a Conciliation Court to which the plaintiff could have summoned the defendant, and both parties had appeared before the judge to talk it over—a little discussion might, one would think, have brought the parties to understand
that the payment of the doctor’s bill or some such course was a fair thing to do, and that pressing vague claims of damage could result in no useful purpose. And if the parties had agreed, they could have signed an agreement in the presence of the Conciliator, which, if not carried out, could afterwards be made an order of Court. But if the judge could not bring them to agree they could still go to law, and no great harm would have been done by their meeting.
And in claims under the Workmen’s Compensation Act there is good reason why some such course should be made compulsory. For when the Act was introduced, Mr. Joseph Chamberlain expected it to be an automatic scheme, and took credit for the government that “we have held it to be a first principle as well as one of our first objects to avoid litigation.” There were to be no lawyers employed and no appeals were to be allowed. What has happened in fact everyone knows. The Bill was so altered in Parliament and by succeeding legislation as to flood the County Courts with litigation of an expensive and difficult nature, and to clog the Court of Appeal with endless discussions on what are from the insurance point of view—and that is the business point of view—trifling matters. And every day one is face to face with the pitiable spectacle of a working man, not necessarily a malingerer—but a neurasthenic subject—physically fit to work, or at least to get into condition to work, and yet not capable of exercising the necessary will