The Law and the Poor

by Sir Edward Abbott Parry

The archbishop treats history as Moses treated the rock. He strikes it with his archiepiscopal staff and there flows forth a gush of watery precedents to rejoice the hearts of the faithful. A poor pagan like myself can only approach the rock with a humble geological hammer and, knocking a few chips off it, report that it does not come of a water-bearing family. Outside miraculous draughts of history there is nothing to be found in the past experience of social life that tells against a reform of our present divorce laws.

But no reform in the law will be of the least use to the poor unless jurisdiction in divorce is given to the County Court. The opposition to this is twofold. It comes from those who object to any reform at all and see that by keeping divorce costly you naturally limit its use, and, again, it comes with even greater force from those who are making their money out of the present system. Very naturally the Divorce Court Bar, having an excellent paying business all to themselves, do not want to share it round with other people. Towards their trade union attitude of mind I have every sympathy. But when it is more than hinted that it would really be beyond the capacity of a County Court judge to try those “very difficult considerations of cruelty, condonation and connivance,” I prefer the alliteration of the phrase to the sense of it. There is really no mystery about divorce law. The issue is an absurdly simple one, of grave importance to the lives of the parties certainly, but to a lawyer with a business mind far easier to try than many of the issues that arise every day in bankruptcy, Admiralty and commercial cases, and in arbitrations under the Workmen’s Compensation Act.

The daily work of a County Court judge is not less difficult than that of his High Court brother. The complication of a case does not depend upon the amount at stake, and the County Court judge has, if anything, to have a somewhat wider knowledge of law and a far greater knowledge of the lives of the poor than any other judicial person, since the legal subjects he deals in are more varied in character than those met with in other Courts, and he naturally sees more of the daily life of the people. Certainly the High Court judges get better assistance from the Bar, or rather, I should say, more assistance—or should it be assistance of greater length?—but the County Court Bar of to-day contains the pick of the younger men, and is really the nursery of the common law Bar since it is only in the County Courts that a catholic experience in civil advocacy can be obtained. I noted with some interest that in a recent batch of silks seven or eight had been before me, some of them several times within a few months of their taking silk.

When there is a divorce case of any importance—in the same way as if it were a libel case of importance—great advocates with no special knowledge of the mysteries of divorce law are called in to lead the specialists. What is wanted is advocacy, not knowledge of divorce procedure, and the County Courts have excellent advocates to-day. If there is one special branch of law where one would think expert knowledge is essential it is Admiralty, yet important Admiralty cases belong to County Court districts where for aught anybody knows or cares the learned judge and the advocates may not know the difference between a bowsprit and a rudder.

But the real reason why the County Court should be chosen for this work in the interests of the poor is to my mind the real reason why the County Court is popular with business men and the High Court is not. In a properly managed County Court a case is set down for a certain day and, except on rare occasions, it is tried on that day. As Mr. Dendy, the learned registrar, pointed out to the Commission, “There’s no doubt it is of very great advantage to a poor man to know the day on which his case is likely to be tried.” It is indeed essential. The man himself and his witnesses do not belong to a class who can spend leisured hours flitting about Gothic corridors or waiting to be fetched from public-houses day by day until their case is reached. Certainty of trial and reasonable speed in reaching and disposing of the case are worth much more to business people than abstruse technical knowledge or long experience of the habits and manners of those who commit adultery. No one has more reverence than I have for the views of Lord Alverstone, who thinks divorce jurisdiction should not be given to County Courts, yet one must not forget that not only is the opposite view supported by a large number of men and women who know the wants of the poor very intimately, but experts, like Sir John Macdonell and Sir George Lewis, both recognise that if you are going to give a whole-hearted measure of reform with the intention of really putting divorce at the disposal of the poor there is no other Court to which these cases can honestly be sent.

Not only must this be done, but if we are to bring ourselves abreast of what already exists in foreign countries we must do a great deal towards cheapening the procedure even of the County Court for those who are poor.

The French have a very complete system of divorce for poor people, known as “Assistance Judicaire.” The effect is that the persons to whom assistance is granted do not have to pay anything whilst they remain poor. The State advances the necessary money. The avocat and avoué—barrister and solicitor—work for nothing. In case the assisted person comes into better circumstances he may be obliged to repay the State. If the poor litigant succeeds in his proceedings, the unsuccessful party pays the costs. In 1907 there were 20,464 persons who applied for assistance, 11,726 of which were in relation to matrimonial proceedings, and relief was granted to 9,205 poor people, of whom 5,136 were seeking different forms of matrimonial relief.

In Germany and the Netherlands divorce is equally open to poor people, who receive State aid, and in Scotland there is a well-known system which is known as the Poors Roll, which is said to have existed since 1424. The Scots Parliament Act, which instituted this excellent procedure, commenced as follows: “If there be any poor creature who for lack of skill or expenses cannot nor may not follow his cause the King for the love of God shall ordain the judge before whom the cause shall be determined to purvey and get a leal and wise advocate to follow such poor creatures causes: and if such causes be obtained [won] the wronger shall indemnify both the party injured and the advocate’s costs and travail.” It is amazing to find in Scotland of the fifteenth century laws for the poor that we are only dimly thinking about in our vague uncertain timid way at the present day.

What actually happens to the poor man of the present day is set out in the following case—a very common one:—

Summoned in the City of London Court for the non-payment of forty-five pounds, his wife’s costs in a divorce suit in which he was the successful petitioner, a City messenger said that he received one hundred and seventeen pounds a year, and while the divorce suit was pending he paid his wife as alimony two pounds ten shillings a month. He had paid sixty-five pounds for his wife’s costs, and still owed forty-five pounds. He had obtained an order for payment of his own costs against the co-respondent, but as that person was only earning a few shillings a week he did not know if he would get anything.