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condonation are all specifically comprised among the various matters in connection with which married persons may now demand a determination of their differences in the police courts. But this Act contains no provision enabling a woman, if her chastity be impugned, to obtain any details or particulars of the charges made against her, nor is she even entitled to bare notice of the fact that the vital issue of adultery will be raised at the hearing. No machinery is provided by means of which the Court can cite third parties implicated in the charges of misconduct; nor can it afford them, as justice would seem to require, an opportunity of being represented at the trial, or of appearing in person to traverse and disprove the allegations of adultery. Indeed, no guidance whatsoever is furnished to justices as to the procedure to be adopted by them in the determination of these grave issues, on the result of which depend the matrimonial status of the parties and the assignment of the custody of the children of the marriage. And yet, in some police districts, more than five hundred such "cases are disposed of in the course of a single year.
With such patent defects in the machinery of the courts, it will, we think, be generally regarded as unfortunate that the administration of the law should be further complicated by meaningless differences or arbitrary distinctions.
Let us consider, as a characteristic example, the mode in which money penalties are recovered. Under some statutes, the Court is empowered to impose a fine, with the direct alternative of a term of imprisonment; in other cases, justices are expressly authorized to levy penalties by means of a distress warrant; and, if no mode of levying the penalty is provided, the ordinary process of compulsion is by warrant of distress. Now, all this gives rise in practice to a useless expenditure of time and labour. When it appears that the remedy is by distress, the justices cannot legally commit the accused to prison until the want of sufficient goods has been
duly ascertained and certified-unless, indeed, the Court expressly finds that the defendant's goods would be insufficient to meet the distress, or that the levy would prove more injurious to himself or his family than imprisonment. We do not, of course, assert that the distinction is other than a real and intelligible distinction, but we contend that it is applied arbitrarily, and not in accordance with any known or conceivable principle, legal or otherwise. This may be readiiy demonstrated. If a baker were to adulterate bread by using a prohibited ingredient when making it for sale, he would be liable (under s. 8 of the Bread Act, 1836) to a money penalty, and, in default of payment, to imprisonment. If, however, he were to adulterate flour dressed for sale, he would be liable (under the following section of the same statute) to a penalty recoverable, in the first instance, by distress. Or, take an illustration from a very recent statute, the Friendly Societies Act, 1896 : if a man falsifies the balance sheet of such a society, he is liable to a penalty recoverable by distress; yet, if he fraudulently withholds or misapplies the money of the society, and disobeys an order requiring him to repay it, although he may, in default of payment, be committed to gaol, there can be no levy on his goods to recover the amount, however valuable may be the property which he is known to possess. Or, again, if a man is fined for taking a rabbit in a warren in the daytime, there can be no distress on his goods; he must be committed forthwith in the event of non-payment; whereas, if he be fined for night-poaching, the penalty will, in the first instance, be recoverable by distress.
Instances of a similar kind might be multiplied indefinitely, but the above will probably suffice to indicate the purely arbitrary character of the distinction.
Like observations will apply to the legislative provisions authorizing the imposition of hard labour, when imprisonment is directed in the event of non-payment of a money penalty. Under some statutes hard labour may be imposed ; in other
cases it may not; and in a few instances it is perhaps doubtful whether or no this course may be pursued. A single illustration will be amply sufficient to display the irrational manner in which this distinction is applied: if the defendant is fined for a common assault on his wife, he may be imprisoned with hard labour, in case the fine is not paid ; but if he be fined for an aggravated assault on the woman, he may, in the event of non-payment of the fine, be imprisoned, but not with hard labour.
Unmeaning distinctions, such as those to which we have just adverted, undoubtedly give rise to waste of valuable time and to unnecessary expense, and are, moreover, obviously calculated to create considerable inconvenience and confusion ; but they do not, as a rule, occasiơn any serious miscarriage of justice, and may, therefore, perhaps, await a remedy in some comprehensive statutory scheme for simplifying and rendering more effective the procedure of courts of summary jurisdiction. There are, however, certain defects which constantly result in positive injustice, and are, apparently, capable of being separately treated and readily remedied. Take an illustration from the Bastardy Laws, which do not confer upon the Courts any power to vary or discharge an affiliation order except, of course, on an immediate appeal to Quarter Sessions. This omission is productive of a serious amount of injustice. In case the payments under such an order are not duly made, the reputed father is imprisoned for noncompliance with the order, quite irrespective of any question as to his past ability to keep up the weekly payments or his present means of discharging the arrears. Now, suppose the defendant, at the time of the original application, to be a youthful apprentice engaged in some highly skilled labour, but earning only ten or twelve shillings a week; the mother to be a “mill-hand,” in receipt of good wages. It would be generally conceded that the order should not exceed half-acrown a week, yet in four or five years the reputed father may
be earning £3 a week, the mother dead, or a pauper, and the child maintained, in great part, out of the poor rate. Taking what may be described as the converse case, i.e. the defendant a skilled artisan in receipt of high wages, let us suppose the full order of five shillings a week to be made upon him. In a very short time he may be crippled, or he may have become a chronic invalid earning a mere pittance, yet the mother (although herself possibly in comparatively good circumstances) may at frequent intervals procure his arrest and imprisonment for non-payment of arrears. Nor has the man any means of shifting or diminishing the incubus cast upon him by the original order.
This reference to the enforcement of bastardy arrears suggests a most serious defect in the Summary Jurisdiction (Married Women) Act, 1895, which is surely susceptible of a simple legislative remedy. Arrears of payments due under an order made upon a husband, by virtue of the Act of 1895, requiring him to contribute towards the maintenance of his wife and children, are declared, by that statute, to be recoverable in the same manner as arrears due under an affiliation order. Now, this provision seems innocent enough, but one of the consequences flowing from it is that no steps can be taken to enforce the order until a calendar month has elapsed from the date when it was made ; and, in the result, the beneficent intention of the framers of the statute is, in very many cases, wholly defeated. Take a case of frequent occurrence: the wife, driven from home in a destitute condition, in order, probably, that her husband may introduce another woman into his house, finds that, under the most favourable circumstances, it will be five weeks before she is entitled to recover from him even the few shillings which she has borrowed to enable herself to take out the summons for a separation order. Meanwhile, she and her young children, by whom she is almost certain to be accompanied, are dependent on the charity of her friends or neighbours for
support. Thus she struggles on as best she may, only to find at the end of this period of grace that the man has broken up the home and left the neighbourhood. chance he has remained on the spot, he will generally be found to have made no provision for the payment of the four weeks' arrears or of even the costs of the proceedings, and the wife will accordingly be compelled to accept a small sum by way of compromise, or the husband will be sent to gaol for non-payment, and in that case she will get nothing.
The effects of this extraordinary provision are peculiarly disastrous in districts where the recent Act is relied upon by the guardians, as a ground for the refusal to put into operation the machinery of the Poor Laws. In such districts, if a woman driven in destitute condition from her husband's roof seeks relief from the Poor Law authorities, the latter, instead of affording relief and prosecuting the husband under the Vagrant Act, or applying for a justices' order requiring him to contribute to his wife's maintenance, refer her to the police court for a summons under the Act of 1895. As we have just seen, the result of this proceeding is often such as was certainly not contemplated by the legislature when its sanction was given to the recent statute.
In the important matter of costs and Court fees the need for uniformity is especially conspicuous. Except in a few cases, justices enjoy an unfettered discretion as to the awarding of costs. The legislature, while very specific as to the amount of penalties, grants a peculiar freedom to the Court in relation to the payment of costs and expenses; and, inasmuch as costs are for the most part recoverable in precisely the same manner as the penalty itself, it is obvious that, unless great care is observed, this wide discretion may easily be so exercised as to defeat the plain intentions of the legislature. It is not perhaps altogether clear why a man of means, who deliberately attempts to defraud a railway company by travelling without payment of the fare,