A legal history of change
160 years later, reforms are still being made to our legal system; District Judge Nigel Law urges the profession to embrace them
District judges and solicitors cannot have missed the fact that this year Solicitors Journal enters its 160th year of continuous publication, the first publication to focus upon the profession, with news reporting and legal analysis
at the fore.
I am pleased to confirm that the Association of Her Majesty's District Judges will continue to submit articles from serving district judges to aid and inform the profession.Many articles have been written already upon the proposed changes set out in the interim report of Lord Justice Briggs on the structure of the civil courts. At the heart of that reform is the proposal for an online court and active supervision by case officers.
Poor man's court
Looking back through old law books, I found that the County Courts Act received royal assent in 1846, described in its preamble as 'an Act for the more easy recovery of small debts and demands in England'. It was initially a poor man's court. Andrew Amos, the first judge at Marylebone County Court, described regular litigants as being 'a great proportion of the poorer classes, gaining their livelihoods by bricklaying, gardening or other out of door occupations and who subsist upon credit in the winter months, and plaints against whom are usually issued in the summer months'.
That Act was passed to provide for an inexpensive system for the recovery of small debts. It must have been successful, for by 1868 over 964,000 plaints were issued, and of those over 11,000 were for more than £20. From the judgments ordered there were over 179,000 warrants of execution.
At or about the same time, by 1841 the Court of Chancery, with a shift towards a common law court, had lost its equitable jurisdiction by reason of the Administration of Justice Act 1841. Attempts at fusing this court with the common law courts began shortly thereafter, and the court was dissolved by the Supreme Court of Judicature Acts of 1873 and 1875, which created the High Court of Justice that we know today.
Family law reform
Family law in 1860 was determined by the Matrimonial Causes Act 1857, which introduced divorce through the court, but in the High Court only. Men only were able to petition the court for a divorce on the basis of their wife's adultery, which had to be proved, whereas a wife had to prove adultery aggravated by cruelty or desertion. In addition, a legally separated wife was given the right to keep what she earned: a change, but not much of one.
A campaign to change the law on children was led by Caroline Norton, whose own marriage to a violent husband had failed. Her pamphlets arguing for the natural right of mothers to have custody of their children won much sympathy among parliamentarians. The Custody of Infants Act of 1839 permitted a mother to petition the courts for custody of her children up to the age of seven, and for access in respect of older children. The Custody of Infants Act of 1873 changed the direction of the 1839 Act by indicating that the correct principles for deciding custody were the needs of the child rather than the rights of either parent. That Act therefore allowed mothers to petition for custody or access to children below the age of 16, but not in all circumstances.
Women who were the victims of male violence in marriage were given protection under the Matrimonial Causes Act of 1878. This allowed them to obtain a protection order from a magistrates' court. It was in effect a judicial separation and gave them custody of their children. Though not a divorce as such, it was not costly and so was available to working class women.
Thankfully, the Offences Against the Person Act 1861 reduced the penalty for abortion; it also confirmed the age of consent as 12, and made carnal knowledge of a girl under ten a felony and of a girl aged ten to 12 a misdemeanour.
These were major changes then, and they were amended and improved upon in later legislation as a result of campaigning. The profession should therefore embrace the changes that are ultimately enacted following the Briggs report, pressing for further change if that becomes necessary. By doing so, the profession will be doing the same as its forebears 160 years ago.
The Association of Her Majesty's District Judges congratulates Solicitors Journal on celebrating its 160 years of publication and wishes its editor and staff continued success in the future.
District Judge Nigel Law sits at Blackpool County Court and Family Court and is media and PR officer for the Association of Her Majesty’s District Judges