Chapter 5 PAST AND PRESENT

In a word we may gather out of history a policy no less wise than eternal; by the comparison and application of other men's fore-passed miseries with our own like errors and ill-deservings.

Sir Walter Raleigh: "History of the World."

Oxford edition. Vol. II., Preface v. and vi.

I often feel that if that excellent patriarch Job had been alive he would have sent me a postcard indited, "O that ye would altogether hold your peace and it should be your wisdom." I have an anonymous friend who sends me frank criticisms of that kind on postcards. The sentiments are the same as Job's text, but the language is fruitier. Nevertheless, I like to hear from him, for he is an attentive reader of all I write. But, honestly, although I was always sorry for Job and glad when he came into his camels and donkeys in the last chapter, yet I never sympathised with his attitude of taking his troubles lying down. After all, if one has gained a little practical experience of the law and the poor by living and working with them for twenty years it seems a pity to take it with you across the ferry into the silence merely because you have a bashful and retiring disposition. It is right, of course, to give your views and services to Select Commissions and the like,-but that is no better than hiding a lump of gold in a hole in the ground. The wiser plan is to try and tell the law-makers of the future-the men in the street-what is wrong with the machine, so that when they take it over, as they must do some day, they will not scrap it in mere despair, but tune it up to a faster and nobler rhythm. Job, great, good, patient soul that he was, had his sour moments-a medical friend of mine believes that he had a liver,-I am sorry not to take the patriarch's advice, but I do not see my way to hold my peace about the law and the poor, and that is why I propose to try and point out how and why the law as a system is hard on the poor, and wherein the governors and great ones of the earth may further temper the wind to the shorn lamb. I myself do not expect to enter into the promised land of legal reform, but I am as sure that the younger generation will see it, as I am sure that they will see the rising sun if they ever get up early enough. The man at the door of the booth who beats the drum and calls out to the young folk in the fair to walk up and see the show plays a helpful part, though the old gentleman knows that he is doomed to stand outside and never make one of the audience. Moses was like that, but he did useful work in booming the promised land.

An eminent socialist complained to me with tears in his eyes that nothing was being done for the poor. I do not agree. Not enough, certainly, but something, and every day more and more. The world is a slow world, and Nature, like all such artisans, does her building and painting and decorating with exasperating deliberation. Geology is slower than the South Eastern Railway. But no doubt Providence intended each of them to go at the pace they do for our good. And it is impious to grumble. Nevertheless, if I were a sculptor called upon to design a symbolic statue of Nature, I should model a plumber. Slow, hesitating, occasionally mixing the taps and flooding the world's bathroom or exploding the gas mains in the cellars of the earth, but in the end doing the job somehow-such is the way of Nature. You cannot cinematograph the growth of the world or its rocks and trees and human beings-to study Nature you want long life and a microscope. And the only way to make out whether the tide is coming in or out is to place a mark upon the shore and wait and see. It is the same if you are travelling an unknown road-you measure your progress by the milestones. In this matter of the law and the poor, if we want to know where we are to-day and where we are likely to be three hundred years hence, the only sane way to make the experiment is to go back to what we know of things in the past, and, by measuring the progress made in bygone centuries, take heart for the morrow. That is what Sir Walter Raleigh meant when he told us how to gather a sane policy for to-day out of the blunders and troubles of yesterday.

As I grope my way back along the main road of the history of the law into the dark ages I seem to find the milestones of reform set at longer and longer intervals. This puts me in good heart for the happy youths whose lot it will be to set their faces towards the morning breezes of the future. Their milestones will come at shorter intervals every day, until the burden of the law drops from the shoulders of the poor at the wicket gate.

There is no greater folly than to sing the praises of the good old days. Anyhow, the law had no good old days for the poor. Stroll down to the dockyards with Samuel Pepys; take a walk down Fleet Street with Dr. Johnson; or, even as late as the days of Charles Dickens, go round the parish with Mr. Bumble. You will learn in this way better than in any other how the law has treated the poor in the good old days. I have a quaint little volume written for the Dogberries of the early eighteenth century called "The Compleat Constable." It is amazing to read of the tyranny of the law towards the poor and the homeless of those days.

The statutes made for punishing rogues, vagabonds, night walkers and such other idle persons are, says the anonymous legal author, "a large Branch of the Constable's Office, and herein two things are to be known:-

"(1) What is a Rogue and who is to be accounted a Vagabond?

"(2) What is to be done unto them?"

The charming impersonal technical spirit of this little work is beyond all praise. Not a word is ever used to remind you that, after all, a rogue and a vagabond is a man and a brother. You are taught first to diagnose him as Izaak Walton would teach the young angler how to discover the singling that did not usually stir in the daytime, and having captured your rogue and vagabond, you are then enlightened as to the various methods of killing or curing him.

And first you are to note that all persons above the age of seven, man or woman, married or single, that wander abroad without a lawful passport and give no good account of their travel are accounted rogues. Then follows a very lengthy list of such as are "of a higher degree and are to be accounted as Rogues, Vagabonds and sturdy Beggars." Such are all Scholars and Sea-faring men that beg, wandering persons using unlawful games, subtle crafts, or pretending to have skill in telling of fortunes by the marks or figures on the hands or face, Egyptians or Gypsies. All Jugglers or Slight-of-hand Artists pretending to do wonders by virtue of Hocus Pocus, the Powder of Pimper le Pimp, or the like; all Tinkers, Pedlars, Chapmen, Glassmen, especially if they be not well known or have a sufficient testimonial. All collectors for Gaols or Hospitals, Fencers, Bearwards, common players of interludes, and Fiddlers or Minstrels wandering abroad. Also Persons delivered out of Gaols who beg their fees, such as go to and from the Baths and do not pursue their License, Soldiers and Mariners that beg and counterfeit certificates from their commanders. And, lastly: "All Labourers which wander abroad out of their respective Parishes, and refuse to work for wages reasonably taxed, having no Livelyhood otherwise to maintain themselves, and such as go with general Passports not directed from Parish to Parish."

In a word, all the unfortunate poor who would not do as they were told by their pastors and masters and wanted to work and amuse themselves in their own way were rogues and vagabonds. And it is not without interest to run your eye over this list, for the statutory rogue and vagabond is still with us and our Poor Law of to-day suffers from its direct hereditary connection with the Poor Law of the eighteenth century.

The duty of "The Compleat Constable" was, in the words of Dogberry, to "comprehend all vagrom men" and he was liable to a fine of ten shillings for every neglect. Moreover, if you were a stalwart fellow, you could apprehend your own rogue and vagabond and hand him over to the constable, who was bound to receive him.

Having dealt in accurate detail with the classification and identification of rogues, we come next to the chapter on treatment, which is best given in the simple words of the original. "The Punishment is after this manner. The Constable, Headburrough or Tythingman assisted by the Minister and one other of the Parish, is to see (or do it himself), That such Rogues and Vagabonds, etc., be stript Naked from the middle upwards and openly Whipped till their Body be bloody and then forthwith to be sent away from Constable to Constable, the next straight way to the place of their Birth; and if that cannot be known then to the place where they last Dwelt, by the space of one whole Year before the time of such their Punishment; and if that cannot be known then to the Town through which they last passed unpunished." If, however, none of these habitats was discoverable, the vagrom man was sent to the house of correction or common gaol, where he was put to hard labour for twelve months.

It is only fair to remember, "that after such Vagabond is whipt as aforesaid he is to have a Testimonial"-is this the origin of people asking for testimonials?-"under the Hand and Seal of the Constable or Tything-man and the Minister testifying the day and place of his Punishment; as also the place to which he is to be conveyed, and the time limited for his own Passage thither: And if by his own default he exceed that time then he is again to be whipt-and so from time to time till he arrive at the place limited."

In the good old days of Merrie England the chief entertainment of the villagers must have been to crowd round the stocks and the whipping post on the village green-some of which are existing to this day-just as their city cousins swarmed along the road to Tyburn. And if you had suggested that the players or the fiddlers were a more wholesome amusement for the people than these cruel sights, you would not only have shocked the minister but would have rendered yourself liable to be treated as a vagrom man and to receive a testimonial from the constable. It is easy to-day to see the wrongdoing of much of this, but it was not to be expected that the citizens of the time should see any evil in the everyday cruelties they were used to. The law seems to have been hard on the poor then, but very few worried about it.

History is constantly showing us that in matters touching the imperfections of our own system of law we are colour blind to the cruelties we commit ourselves and easily moved to indignation by the horrors and wickednesses committed by foreigners, especially if they are foreigners who have never known the blessings of the particular religion we profess. When Fynes Moryson was travelling in Turkey at the end of the sixteenth century, he set down with reasonable detestation some of the gruesome things he observed. "Touching their Corporal and Capital Judgments," he writes: "For small offences they are beaten with cudgels on the soles of the feet, the bellies and backs, the strokes being many and painful according to the offence or the anger of him that inflicts them. Myself did see some hanging and rotting in chains upon the gallows."

Yet in England he might have seen many of his fellow countrymen hanging and rotting in chains, for there was at that date and for many years afterwards no country with a more evil record than England for the practice of capital punishment for minor offences. As to mere corporal punishment, there was not a village in England without its whipping post, and a common sight in the streets of the city was to see a poor wretch being whipped at the cart's tail. In ordinary cases the journey was from Newgate to Ludgate, or from Charing Cross to Westminster, but for really bad cases it was extended from Newgate to Charing Cross. And not only did these punishments exist in England, but the populace enjoyed them. One of the sights of London was to see the women whipped in the Bridewell. The Court of Governors held their board meeting, presided over by a magistrate, and the sentence was executed in their presence and continued until the President struck the table in front of him with a hammer. The cry, "O good Sir Robert, knock! Pray, good Sir Robert, knock!" which the victims screamed out whilst under the lash, became a common slang cry among the lower orders in the streets of London in the seventeenth century.

There can be no doubt about the horrors of the old prisons, but it was only men and women of especial insight who recognised that there was real evil in them. Literature and art did much to arouse the public conscience. There is a strong description of the Bridewell in "Roderick Random," where Smollett makes Miss Williams tell her life story. In this prison, she says, "I actually believed myself in hell tormented by fiends; indeed, there needs not a very extravagant imagination to form that idea; for of all the scenes on earth that of Bridewell approaches nearest the notion I had always entertained of the infernal regions. Here I saw nothing but rage, anguish and impiety; and heard nothing but groans, curses and blasphemy. In the midst of this hellish crew I was subjected to the tyranny of a barbarian who imposed upon me tasks that I could not possibly perform and then punished my incapacity with the utmost rigour and inhumanity. I was often whipped into a swoon and lashed out of it, during which miserable intervals I was robbed by my fellow-prisoners of everything about me even to my cap, shoes and stockings: I was not only destitute of necessaries but even of food, so that my wretchedness was extreme."

No one need suppose that Smollett is guilty of exaggeration, for the well-known plate of Hogarth shows us the actual scene and the records of the place are numerous. There were, of course, just as many good and charitable men and women then as there are now, but the possibility that a Bridewell was a thing that the world had then no use for was entirely beyond the thought of the eighteenth century citizen. In the same way how few of us recognise that there is much room for reform in the penal system of to-day.

It is natural that it should be so. We arrive in the world knowing nothing much about it, we are brought up to believe that everything that has been going on for the last few centuries has been for the best, and the tired old ones who are leaving us are never tired enough to leave off telling us that they have made every possible reform that it was safe and advisable to make. In the few years of hustling life and in the scanty hours that he can spare from earning his daily bread the average citizen has little time and opportunity to investigate the social system of which he is a unit, or to understand how or why the wheels of the world machine are grinding unevenly. When we read of the horrors of two or three hundred years ago, it should not be to cast a reproach against our fathers, but rather to learn who were the men and women who moved the world of that day to see things as they were. These glorious spirits have enabled us to enter upon our inheritance free from the worst degradations of the past and we may best render them thanks and praise by learning to follow their example.

I make no doubt that most of us are much like old Fynes Moryson, who, being an ordinary average Englishman, saw the everyday horrors of his own country, but was in no way impressed by them, yet was moved to grave indignation at the wickedness and cruelties of foreigners. Truly the seventeenth century Turk was a cruel beast. Moryson tells us with honest reprobation, but in gruesome detail, of the Turkish methods of impaling, where a "man may languish two or three days in pain and hunger; if torment will permit him in that time to feel hunger for no man dares give him meat," and of casting down malefactors to pitch upon hooks and other nameless horrors. Yet if he had been in London on October 19th, 1615, and dropped into the Guildhall, he might have heard the Lord Chief Justice of England, the great Coke, using much persuasion to Richard Weston, who, being accused of the murder of Sir Thomas Overbury, stood mute, refusing to plead.

Coke and his brother judges, having failed to persuade the wretched Weston to utter a plea of not guilty, the Lord Chief Justice repeated for his benefit the law of England at that time and reminded him that the prisoner who wilfully stood mute must undergo the peine forte et dure, the extremity and rigour whereof was expressed in these words, "Onere, frigore et fame." "For the first," continued his Lordship, "he was to receive his punishment by the law, to be extended and then to have weights laid upon him no more than he was able to bear which were by little and little to be increased. For the second, that he was to be exposed in an open place near the prison in the open air, being naked. And; lastly, that he was to be preserved with the coarsest bread that could be got, and water out of the next sink or puddle to the place of execution, and that day he had water he should have no bread, and that day he had bread he should have no water; and in this torment he was to linger as long as nature could linger out so that often times men lived in that extremity eight or nine days; adding further that as life left him so judgment should find him. And therefore he required him upon consideration of these reasons to advise himself to plead to his country."

Notwithstanding this advice the wretched man continued mute, but after a consideration, during an adjournment of three or four days, of the law of procedure as laid down by Lord Chief Justice Coke, Weston thought better of it and pleaded not guilty, and was duly convicted and executed.

How illogical it seems that a citizen whose State executed this form of torture on its prisoners should hold up the holy hands of horror at the variations of cruelty that satisfied the lust of the unspeakable Turk! The peine forte et dure remained one of the pillars of our law until the reign of George III. and was carried into execution in the reign of Queen Anne and George II.-so obstinately do we cling to our ancient precedents and so fearful are we of facing the narrow paths that lead to better things.

When Oliver Goldsmith wrote, "Laws grind the poor and rich men rule the law," I do not know that he wished to make any specially unkind attack upon the rich. I imagine he merely intended to state a fact which seems in all ages to have been universally true. I do not suppose that in the middle of the eighteenth century anyone in the least recognised the actual horrors that were going on around him unless it was some poet and dreamer like Oliver himself. The strong, sensible men of that generation were as assured of their own righteousness as they are to-day.

Dr. Johnson told Dr. Maxwell that "the poor in England were better provided for than in any other country of the same extent; he did not mean little cantons or petty republics. Where a great proportion of the people (said he) are suffered to languish in helpless misery that country must be ill-policed and wretchedly governed; a decent provision for the poor is the test of civilisation. Gentlemen of education, he observed, were pretty much the same in all countries; the condition of the lower orders, the poor specially, was the true mark of national discrimination."

The good Doctor rolled all that excellent stuff out one evening in 1770 to the Rev. Dr. Maxwell, the assistant preacher of the Temple, who, like Boswell, faithfully recorded what he remembered of it in the morning-I doubt not that if Dr. Johnson had lived in 1670, or 1870, or 1970, or had flourished under Caligula or Nero, he would have rolled out the same sonorous complacent nonsense to some sort of faithful human gramophone who would have recorded the utterances of his master's voice with a canine credulity in its omniscience.

There is nothing extraordinary in the divergence of the views of Oliver Goldsmith and Dr. Johnson about the law and the poor. The good Doctor held the strong, sensible, Tory view that the system of treating the poor handed down to us by our forefathers was the right and proper system, that it was at least as good as any other system, that nothing anyhow could be learned from the hated foreigner, and that to pander to dreamers and busybodies, who found fault and wanted to alter things, was to start down the broad road of destruction. Oliver Goldsmith might have thought the same thing if he had been an Englishman, but he had the saving grace of Irish blood in his veins, and the true Irish have the power of looking beyond the present, and are often prophets and dreamers of dreams, seeing signs and wonders that we wot not of.

"Sir!" said Dr. Johnson on another occasion, and when he began like that you knew that wisdom was about; "the age is running mad after innovations; all the business of the world is to be done in a new way; Tyburn itself is not safe from the fury of innovation."

It having been argued that this was an improvement-"No, sir (said he eagerly), it is not an improvement; they object that the old method drew together a number of spectators. Sir, executions are intended to draw spectators. If they do not draw spectators, they don't answer their purpose. The old method was most satisfactory to all parties; the public was gratified by a procession; the criminal was supported by it. Why is all this to be swept away?"

And Boswell and Sir William Scott nodded approval, just as you and I would have done or do now when some important old gentleman lays down the law about something of which he knows perhaps even a little less than we do and we are too courteous or cowardly to tell him that at the back of our minds we believe he is talking nonsense.

If you would be gratified by a Tyburn procession, you may see one any day for yourself in Hogarth's print of the awful end of the Idle Apprentice. The ragged men, women and children bawling dying speeches about the streets, the criminal in the cart sitting beside his coffin, the chaplain exhorting the poor outcast, who, if he still courted popularity, scoffed openly, shouting to his friends on St. Sepulchre's steps where they stood with their nosegays to give their pal a last greeting. What a solemn impressive scene! All the way up Holborn there is a crowd so great that every twenty or thirty yards the cart is pulled up, and now someone brings out wine and the malefactor drinks a last toast. And when he reaches the fatal tree the ribald mob swears and laughs and shouts out obscene jests. Amid these noises a psalm is sung and the sound of it drowned in filthy tumult. So was the life of a fellow sinner brought to an end in the eighteenth century.

And there were men and women who wanted to abolish it all. It was too much for Dr. Johnson. "Tyburn itself not safe from the fury of innovation!" Fancy that! What a terrible outlook! The law deserting the poor and giving them no more cheap excursions to Tyburn-well might the good Doctor shake his dear old head and prophesy woe.

And when Dr. Johnson upheld the English treatment of the poor in 1770, we may suppose he knew as much about it as a literary professor of to-day knows about what is going on in the workhouse, or the police court, or the County Court of our own time. The belief that the world is the best possible of worlds has its value in making for the stability of things, but mere ignorance of the facts of life, coupled with that strange form of piety which accepts whatever system was good enough for a past age as the only possible system for this, renders the pace of social reform as imperceptible to the human mind as the movements of glaciers.

If a history of the law and the poor were to be written, it would be a story of the lower classes emerging out of slavery into serfdom, out of serfdom into freedom of a limited character, and every age finding new abuses to remedy and trying in some small way to rid the law of some of those traits of barbarism which linger in its old-world features. To each new generation the terrors of the past iniquity of the law are mere nightmares. We can scarcely believe that what we read is true any more than our grandchildren will be able to understand how we were able to tolerate some of the everyday legal incidents of our daily courts.

Less than a hundred years ago at Salford Quarter Sessions there were over two hundred prisoners, all poor and mostly very young, and the law thought nothing of transporting them for life or fourteen years as a punishment for small thefts. And horrible as all this cruelty was, yet I make little doubt that the judges of the time, with very few exceptions, administered the law as humanely as they do to-day. Sir Thomas Starkie, the learned Chairman of the Salford Epiphany Quarter Sessions in 1824, no doubt felt very grieved when he sentenced Martha Myers, aged sixteen, and Mary Mason, twenty-four, to seven years' transportation. I expect he thought he was "giving them another chance." Perhaps he was. We do not know. They may have become the mothers of big-limbed colonial aristocrats instead of peopling the Hundred of Salford with another generation of feeble-minded criminals.

Nowadays there is a tendency among the less discerning of mankind to set down all the rough edges and inequalities of the law to the fault of the judges, though in truth they have but a small part in the making of new laws, and I do not think they can be rightly blamed for harsh administration. They get the blame because they are the figure-heads of the show, so to speak, and the public know nothing of the difficulties under which the judges labour. It is their duty to administer the complicated modern laws turned out by Parliament in a somewhat haphazard fashion, and they are bound to keep alive old-world laws that ought long ago to have been shot on to the rubbish heap. Nearly all the law relating to the poor will be found to be defective to our modern sympathies, just because it is a patching up of the ancient cruel pagan law of past ages and does not break bravely away from the old superstitious uses and close for ever the volumes of laws that were made in the days when liberty and equality and fraternity were words of anarchy and rebellion.

The poor are suffering to-day at the hands of the law because in the evolution of things we have a lot of old derelict law made by slaveowners for slaves, by masters for serfs, by the landlords for the landless. It is law that has no more relation to the wants of to-day, and would be of no more purpose to a Ministry of Justice-if we had one-than crossbows and arquebuses would be to the War Office, or coracles to the Admiralty. And, instead of cursing the judges, who, poor fellows, are doing their best, I wish our parliamentary masters would look into the history of the matter. They would find, I think, that in the last few years enormous reforms have been made in modifying the cruelty of the law to the poor, and might discover, by marking back on the track of past reform, the lines upon which further evolution may be hastened. One thing, I think, they will be convinced about: it is not the judges who are hard on the poor, it is the law. It is the sins of the lawgivers of the past that the poor are expiating to-day.

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