Chapter VII: Costs and Fusion

A friend of mine once remarked to me that the rich never legislate for the poor but always for the rich, to which I retorted that the poor never legislate for the poor but always for the rich. The Labour Party is ready enough to attack any wealth which no longer exists, such as the so-called wealth of rural land-owners, but will never attack a really bloated Trust such as an international industrial company; nor are they ever likely to make such an attack. (I took care to satisfy myself on this point before buying shares in one such company.) It is therefore improbable that even should the Labour Party obtain permanent power it will ever try to make law cheap for the poor; and the only men and women who have ever taken any steps in this direction are the few who realize that the pillars of society repose upon a belief in equal justice for all.

I fear that I can see no prospect for at least fifty years of law costs being reduced either for the rich or for the poor. So far as the rich are concerned, one might suppose that they would insist upon the law being codified into some degree of simplicity so that two citizens might be able to arrive at their legal rights by successive postcards referring to different sections of the code. That is the Utopian ideal once expounded to me by Mr. H. G. Wells; but as years go on it becomes more and more remote. Popular government leads to the endless complication of statutes; and even if these statutes were intelligible, the increasing power of bureaucrats to make rules for themselves becomes more and more profitable for the lawyers.

I presume that one day the poor man will be allowed to obtain justice within reasonable distance of his home. It is remarkable that a large number of muddle-headed persons who wish to subsidize not only the poor man but also his childless widow and any number of children whom he may wish to procreate, have never understood that he might like also to obtain justice, especially in the matter of domestic relations. Poor persons ought certainly to have as good a chance of obtaining a divorce as they have of being married, and also to have a chance of defending vexatious proceedings on the part of either spouse. It is monstrous that husbands should be treated as they are now in the police courts, and arrested for arrears of maintenance as soon as they have finished a term of imprisonment which in most cases they would never have incurred but for a deep conviction of injustice.

If the community ever becomes sufficiently enlightened to provide justice for the poor, I think that they will probably adopt the American example of what are called Courts of Domestic Relations. The Secretary of the Divorce Law Reform Union has received some interesting communications on these courts from Judge Lindsey in Denver and Judge Hoffman in Cincinnati. Judge Lindsey’s testimony is as follows:

“I am confident, after twenty-three years as a Judge of a
Domestic Relations Court in America――where I granted thousands
of divorces and heard other thousands of separation and
non-support cases and controversies between parents over their
children――that a liberal divorce law contributes to morality,
decency, and, in the end, the strength of the home; but I shall
probably have to write a book, based on my experiences, to
prove it. A short article or interview is capable of so many
misunderstandings and misinterpretations, even though it be not
wilfully done.

“The fact that in some western cities we have a great many
divorces does not mean an increase in immorality, or even an
increase in the breaking up of homes. It is often the very best
thing that could happen. Of course, it is our policy in this
Court to get discordant couples together where we can; but
there are some cases where we would consider it nothing short
of a crime to try to get them together, and on the contrary
try to get them apart, but all in the interest of morality and
decency.

“I am judge at this time of what is known as a separate,
special Court, in a city of nearly 300,000 people in one of our
western cities (Denver, Colorado). The State has a population
of about a million people; but my jurisdiction is limited to
its capital city, which has nearly one-third of the population
of the entire State. The western part of the State is very
mountainous and sparsely settled; the eastern part is mostly
arid country and at present without irrigation, being also
sparsely settled; but there are certain sections of the State
which are very good for agriculture and others rich in mineral
resources; and as a commercial centre, Denver is a delightful
and beautiful city, made up of the best people in the world.

“Last year we had in this city about 3,000 marriage licenses,
and about 1,500 applications for divorce, with perhaps not
over 1,000 of them granted. We have a city of excellent homes
and exceptional laws for the protection of children, and the
morality of our people is equal to that of the very best.

“I am sorry that we have not as yet completed the contemplated
report of this Court, which we expect to have printed. I am
hoping to have it ready in about six or eight months, and I
think it will be a volume that will greatly interest your
readers.

“This Court has jurisdiction over all children’s cases, and all
youths under twenty-one, all cases of non-support or desertion
of wives or children, and of controversies of parents over
their children, and practically all criminal cases where the
accused has committed an offense against a child. Thus, it
is a special tribunal for the _correction_ and _protection_
of children and some cases of domestic relations. We do not
now have the divorce cases proper, although I tried them for
seven or eight years exclusively. The reason for this is that
happily most of those cases are between couples who have no
children, and the divorce cases take up too much time from the
more important work dealing with children’s cases. However, in
a divorce case where there is a controversy between husband
and wife over the custody of a child, it may be heard, and
frequently is heard, in this Court. A Bill is now before the
Legislature which will practically require the hearing of most
of these cases in this Court.

“We have visitation and probation officers, medical clinics,
physical and psychological, which aid and assist us. The work
of this Court, in a word, is more that of a place of human
adjustment――adjustment of human difficulties growing out of the
relation of the sexes, married or unmarried. To my mind this is
the most important kind of a tribunal and ought to exist in,
say, ten or fifteen districts in London instead of the system
you have of dividing the work into many courts where none of
them are equipped as experts. An address which I delivered
nearly ten years ago still covers a great deal of my ideas on
the ideal tribunal of this kind.

“The budget of this Court for all its work in its various
divisions, last year, was about $30,000. I believe with
you that would be about £5,000 or £6,000. This includes
the salaries of the judge, the clerks, probation officers,
stenographers, visitation agents, specialists, etc. We heard
and disposed of about 3,000 cases last year at an expense
of about $10.00 per case (about £2). Perhaps in half of the
cases of domestic difficulties we were able to bring about an
amicable settlement and restore the relations in the home. In
perhaps twenty-five per cent. of them we were quite agreed that
no effort should be made to restore such relations unless we
wished to contribute to crime and immorality. Of course, in
most of such cases the old church view would be to persuade the
people to live together in a state of what to us is sin and
crime, but with the church is considered perfectly proper.

“When we have to send a youth to the State prison, jail or
reformatory, we send him by himself on trust and honour,
without an officer and without official restraint. Out of some
eight hundred thus committed in the last twenty years, we have
never lost a prisoner.

“We very seldom swear a witness in the Court, and seldom
take testimony. The cases are tried by what we call the
administrative method. For example, the wife will consult with
me one day, the husband the next, and then both together. I
could see a witness for either side at any time. We listen to
anyone who wants to talk, so long as they do not all talk at
once. We have no rules of evidence and no Court costs, and, as
a rule, no lawyers’ or counsel or solicitors’ fees. The judge
of this Court is a human adjuster of human difficulties without
cost or expense to the parties involved.

“Most of the people involved in sex cases come here voluntarily,
even though the cases may involve criminal offences. People
never lie to us, although it is very rare that they are ever
sworn to tell the truth. In most cases their own papers are
prepared by the clerks of the Court for both sides, without the
need or aid of lawyers or solicitors. I should say that in not
over one case in fifty does any lawyer ever appear. Of course,
if they wish to appear they have a right to, but, as a rule,
litigants do not want them because they do not need them. In the
saving of counsel, solicitors’, and Court fees for litigants,
many thousands of dollars have been saved, and other financial
savings during my administration have amounted to millions of
dollars, as can be shown by the records. There is, perhaps, not
an “exception” or an appeal――though that right is allowed――in
one case out of five thousand in this Court. In other words, it
is a Court of justice without any of the hampering hobbles that
make for perjury and crime in other courts, as we have found
from actual experience.”

Judge Hoffman writes as follows:――

“It being fairly well conceded by scientific social workers
that delinquency of children, divorce, desertion, and adult
criminality are inter-related and in great measure originate in
the family, it was determined in 1914 in the City of Cincinnati
to organize a court that might deal with the family situation
as a whole; consequently, in that year the Legislature of the
State of Ohio provided such a court for Hamilton County, in
which the City of Cincinnati is located.

“Hamilton County has nine Nisi Prius Judges, designated in
our State as the Judges of the Court of Common Pleas. The law
stipulated that at the next election of the Judges of the
Court of Common Pleas one should be designated on the ballot
as Judge of the Court of Common Pleas, Division of Domestic
Relations, and to the judge so elected, the judges in joint
session should assign all divorce and alimony cases, all cases
of desertion and all cases arising under the Juvenile Court
Act, which includes contributing to delinquency and dependency.
As the Juvenile Court administers mothers’ pensions, this also
comes under the jurisdiction of the so-called Court of Domestic
Relations or, as it is termed in this city, Family Court.

“The purpose of the Court was that of securing more efficient
handling of the problems of an anti-social character that
arise in the family, and also of ascertaining, if possible,
the causes of family dissension and disruption. While the
law does not so provide, yet we have been able to organize
a psychological and psychiatric clinic in connection with
the court. The clinic now has three psychologists and a
psychiatrist; in addition thereto, a physician for the purpose
of making physical examinations of girls.

“The Juvenile Court procedure has all but disappeared. We do
not believe that a court procedure has any therapeutic value
in the handling of children afflicted with that which we term
the disease of delinquency. It has been found possible for us
to prevent the sending of children to the industrial schools,
reformatories, or correctional institutes of any character.

“In this State we have an industrial school that now has
a population of 1,200 boys. Cincinnati has a population
of 500,000 and is the second largest city in the State.
Notwithstanding this fact we have but two boys in the industrial
school at this time and these two have been committed to that
institution only because we have found them to be incurable and
there is no other institution in the State that is equipped to
handle cases of this kind. We hope to remedy this defect at an
early date. We have sent no girls to the State industrial school
for three years last past.

“It is a well-established fact that the anti-social behaviour
at the basis of divorce is exceedingly injurious to children;
therefore we use our probation force in the divorce division
and attempt to care for the children involved.

“We have a central record system in which the history of the
whole family is recorded. We find that in 30 per cent. of the
divorce cases the family has previously appeared in some way
in the Juvenile Division. The significance of this fact is
apparent.

“We have found, too, that the grounds for divorce mentioned in
the petition or complaint are but descriptive of the symptoms
of the real causes that are seldom, if ever, mentioned in the
petition or appear in the evidence. In fact, so far as the
court procedure is concerned, the real causes would never be
revealed. We made an intensive pathological investigation and
examination in about 1,400 cases. The facts revealed in these
examinations are of such a nature as to utterly refute the
doctrine that in no instance ought a divorce to be granted or
that a party should be prevented from obtaining a legal relief
by a restricted divorce law or by making the divorce procedure
so costly as to prevent the party from obtaining any relief
under it.”

There are also certain other points which may one day be settled in order to give justice to the poor. One of them is the question of costs for an innocent person arrested on a criminal charge. It seems to me only right that if the prosecution fails the prisoner should have a right to obtain costs against the Crown even if he is not allowed the right of suing the Crown for damages for malicious prosecution, which, I think, should exist just as much as in the case of malicious prosecution by a private individual. In regard to murder, the prisoner has the special advantage of being able to give exclusive rights to some particular newspaper in consideration of the newspaper financing his defence; but in so far as this leads to a disproportionate amount of limelight being thrown by the said newspaper on the private life of the family history of the criminal, it tends to have a demoralizing effect. This advantage is at any rate denied to the ordinary poor man who is wrongfully arrested on some minor and scandalous charge, and the situation to-day is enormously aggravated by the employment of narks or decoys in mufti by the police.

I imagine that many of these reforms will be carried out by the Ministry of Justice which was so ardently advocated by the late Mr. Samuel Garrett as a substitute for the overworked Lord Chancellors of our day. But perhaps I need hardly recapitulate here the arguments for such a ministry which are set out in my book _Concerning Solicitors_.[1]

[1] Published by Chatto & Windus.

Personally I believe that justice for the poor can be and will be achieved mainly on the Scottish system, which provides a rota of counsel and solicitors for poor persons in both civil and criminal matters. Many publicists, the most eminent of whom is perhaps Walter Bagehot, have imagined that cheap law could be achieved by what is called the fusion of solicitors and barristers. I gravely doubt whether this process will ever take place in Great Britain, or whether, if it did, it would have many of the advantages which have been attributed to it. Some years ago I took the trouble to make some enquiry into the matter, and I obtained expert opinion in regard to the Colonial and American system, under which fusion has been established. It works fairly well in the higher courts of sparsely populated colonies, for there the need for specialization is not so acutely felt as in big cities, where more money is usually at stake and where the solicitor has much more work to do in his own office. On the other hand, even where fusion exists, it does not abolish the essential division of labour in regard to preparing a case for hearing and expounding the case in court. The information which I obtained resulted in the following conclusion:――(1) Fusion would not tend to make law any cheaper in Great Britain and it certainly does not make law any cheaper in the Colonies or in the United States. (2) Fusion would not mean greater despatch in dealing with business. (3) The client would not obtain better advice, because where fusion exists the firm of lawyers whom he consults prefer the opinion of a partner to that of a specialist in another firm.

We may possibly see the lay client enabled to consult counsel direct where litigation is not concerned and the solicitor’s right of audience in the High Court slightly extended.