“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.