Summary Justice and Working-Class Marriage in England, 1870–1940
Published online by Cambridge University Press: 28 October 2011
England's criminal justice system has been depicted as evolving from a preindustrial form in which wide judicial discretion served to legitimate the social order, to a new form where the need to impose industrial discipline on an increasingly urbanized work force produced less harsh but more systematic punishments. According to this vision, the wheels of Victorian justice ground both more gently and more intrusively than they had a century before, since along with the abolition of many capital crimes and the diminishing resort to incarceration went an intensified examination of private lives. As Jennifer Davis has made clear, however, historians of crime often underestimate the degree of continuity between eighteenth- and nineteenth-century law enforcement, particularly at the local level. Significantly, both eighteenth-century justices of the peace and nineteenth-century police court magistrates enjoyed great latitude in their dealings with the poor people who appeared before them. Nowhere is the highly personal and unsystematic nature of modern summary justice more strikingly revealed than in the police court's adjudication of disputes between husbands and wives.
- Law and History Review , Volume 12 , Issue 2 , Fall 1994 , pp. 229 - 275
- Copyright © the American Society for Legal History, Inc. 1994
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138. Preparation for Marriage: A Handbook Prepared by a Special Committee on Behalf of the British Social Hygiene Council (London, 1932), 87, 93–94; Advances in Understanding the Child (London, 1935), 8–9.
139. Minutes of the C.E.T.S. Police Court Missionaries' Guild, October 17, 1929, Lambeth Palace Library, MS. 2060; Probation (January 1935), 349–50; Ellison, Mary, Sparks Beneath the Ashes: Experiences of a London Probation Officer (London, 1934), 100–11.Google Scholar
140. Evening News April 21, 1934.
141. Parliamentary Debates 5th ser., 92 (H.L. May 15, 1934): col. 365; Evening News, April 21, 1934; “Police Courts and Husbands and Wives,” The Spectator 152 (April 13, 1934): 567.
142. See, for example, The Times May 15, 1934; and “Marriage in the Police Court,” New Statesman and Nation n.s., 7 (April 21, 1934): 587.
143. Parliamentary Debates 5th sen, 92 (H.L. May 15, 1934), cols. 366–72, 378, 380–85.
144. P.R.O., H045/15719/520977, memo by Maxwell, ca. May 2, 1934; Schuster to Dawson, April 19, 1934.
145. The Times July 26, 1934. Lord Merrivale's Matrimonial Causes (Amended Procedure) Bill, introduced on October 30, 1934, was designed primarily to remind the government that pressure for regularizing police court matrimonial work had not diminished. Parliamentary Debates 5th ser., 94 (H.L. October 30, 1934), cols. 1–2; ibid., 94 (November 7, 1934), cols. 173–76, 186.
146. Modern historical scholarship has completely overlooked Mullins as a legal reformer and judicial innovator. He has earned just one casual reference, this in Jane Lewis's Women in England 1870–1950, 47.
147. Mullins, Claud, One Man's Furrow (London, 1963), 13, 52–53, 100, 103Google Scholar; Mullins, , Fifteen Years' Hard Labour (London, 1948), 13–20.Google Scholar
148. Mullins, One Man's Furrow, 104–8; idem, Marriage, Children and God (London, 1933), 77–78; idem, The Magistrate (July-August 1933), 707–8; idem, “Christianity and the Family,” The Spectator 152 (February 2, 1934): 152–53. See also Barry, F. R., Mullins, Claud, and White, Douglas, Right Marriage (London, 1934).Google Scholar As if Mullins's open advocacy of birth control were not controversial enough, he also wrote at least one article on the psychic prowess of Fraulein Oesterreicher, a German “intuitive graphologist.” See Mullins, “The Graphologin: A Unique Experience,” Cornhill Magazine n.s., 72 (April 1932): 398–406.
149. Mullins, Marriage, Children and God, 196; idem, One Man's Furrow 110.
150. Mullins, One Man's Furrow, 110–12; P.R.O., H045/15719/520977, Powell to Robinson, May 1, 1934.
151. South Western Star, November 2, 1934; ibid., June 16, 1933; ibid., June 23, 1933. By early 1939 Mullins had persuaded the Home Office to assign his court two additional missionaries: ibid., March 10, 1939.
152. Ibid., November 9, 1934.
153. Home Office Library, testimony before the Summary Courts (Social Services) Committee, 1934–35, I, E.V. 9, 2.
154. Mullins, Wife v. Husband in the Courts, 50–53; idem, One Man's Furrow, 113; South Western Star, November 23, 1934.
155. Home Office Library, testimony before the Summary Courts (Social Services) Committee, 1934–35, I, E.V. 10, n.p.
156. Mullins, Wife v. Husband in the Courts, 16–17.
157. South Western Star, May 17, 1935. Mullins compiled his panel of medical psychologists with help from the British Social Hygiene Council. On the B.S.H.C.'s work with the “physiology of marriage” see Collier, Howard E., Happy Marriage in Modern Life (Birmingham, 1937), 9.Google Scholar
158. Mullins, Wife v. Husband in the Courts, 41–42, 116–19, 15–16.
159. South Western Star July 24, 1936.
160. Report of the Departmental Committee on the Social Services in Courts of Summary Jurisdiction, Parliamentary Papers 8 (1935–36) (Cmd. 5122): 11.
161. South Western Star, February 22, 1935; ibid., January 3, 1936.
162. Ibid., February 7, 1936; ibid., October 9, 1936; ibid., November 13, 1936; Mullins, Fifteen Years' Hard Labour, 148–49. See also Daily Mirror, July 7, 1937.
163. Report of the Departmental Committee on Sterilisation, Parliamentary Papers 15 (1933–34) (Cmd. 4485): 21; Mowrer, Ernest R., Family Disorganization (Chicago, 1927).Google Scholar Mullins himself was convinced that juvenile crime usually stemmed from what Cyril Burt called “defective family relationships.” In addition to Burt's The Young Offender (1925), two studies by American criminologists, Sheldon and Eleanor Glueck's One Thousand Juvenile Delinquents (1934), and Albert Morris's Criminology (1935), did much to shape Mullins's views on the causal connection between divorce and delinquency. See Mullins, Wife v. Husband in the Courts, 23–24.
165. The Times July 19, 1939; P.R.O., H045/21034/590660, Maxwell to Mullins, August 4, 1939.
166. P.R.O., H045/21034/590660, memo of March 10, 1936; Mullins, One Man's Furrow, 126. Nor would Neville Chamberlain's Tory government listen to the Labour Member of Parliament who wished to brand Mullins a judicial misfit for declaring that two untrustworthy witnesses should be placed in a “concentration camp” and forced to study history for five years. Parliamentary Debates, 5th ser., 341 (November 17, 1938), cols. 1050–51; South Western Star, November 4, 1938.
167. South Western Star, July 16, 1937.
168. Liverpool Post, October 5, 1937; Yorkshire Observer, October 5, 1937.
169. South Western Star, August 9, 1935.
170. Report of the Departmental Committee on the Social Services in Courts of Summary Jurisdiction, Parliamentary Papers 8 (1935–1936): 12Google Scholar; Probation (October 1936): 83.
171. Geeson, Cecil, Just Justice? Husbands and Wives in the Police Courts (London, 1936), 44–46.Google Scholar
172. Home Office Library, testimony before the Summary Courts (Social Services) Committee, 1934–35, 1, E.V. 23(a), 12; ibid., E.V. 36, 2.
173. Latey, William and Rees, D. Perronet, Latey's Law and Practice in Divorce and Matrimonial Causes, 12th ed. (London, 1940), 416.Google Scholar
174. The Summary Procedures (Domestic Proceedings) Act, 1937, 1 Edw. 8 and 1 Geo. 6, c. 58. This Act took effect on October 1, 1937.
175. P.R.O., H045/17152/695967, Harris to Mullins, January 14, 1937; Mullins to Harris, January 17, 1937.
176. Parliamentary Debates, 5th ser., 319 (February 5, 1937), cols. 1977–78, 1948, 1953.
177. Phillips, Putting Asunder, 529–30; Stone, Road to Divorce, 401; Stetson, A Woman's Issue, 115–17; Acland, E. D., “The Marriage Bill,” Fortnightly Review, n.s., 141 (February 1937): 226.Google Scholar
179. The Times, April 23, 1934; ibid., July 8, 1937; ibid., September 9, 1937. Mullins and Herbert, one-time allies in the cause of divorce law reform, came to rhetorical blows over the former's public criticism of the “Marriage Bill.” See Herbert, A. P., The Ayes Have It (London, 1937), 57–63Google Scholar; and The Times, September 8, 1937.
108. [Claud Mullins] “Divorce via Magistrates' Courts,” Law Journal 84 (October 9, 1937): 230–31.
181. South Western Star, October 15, 1937.
182. By the late 1930s, the practice of lawyers giving free legai advice to working-class folk had spread far beyond the East End university settlements where it had begun. In London, a voluntary body called the Bentham Committee gave some organizational form to work that had long lacked any uniformity. Beyond offering counsel, a “Poor Man's Lawyer” would do no more than draft letters for his “clients.” To gain representation in court a laborer had to apply to one of the ninety “Poor Persons Committees” operating in England and Wales under the auspices of various professional legal societies. “Poor Persons” representation was limited to actions taken in the High Court of Justice, mostly undefended divorce cases. On the eve of World War II there existed no scheme for cheap legal representation in police courts. The Society, Law, Annual Report, 1937 (London, 1937), 132, 142, 152Google Scholar; Jackson, R. M., The Machinery of Justice in England (Cambridge, 1940), 252–53, 256–57.Google Scholar
183. Roberts, The Classic Slum, 41–44, 77–78; Meacham, Standish, A Life Apart: The English Working Class, 1890–1914 (Cambridge, Mass., 1977), 62–66, 199Google Scholar; Jones, Gareth Stedman, “Working-Class Culture and Working-Class Politics in London, 1870–1900,” in Languages of Class: Studies in English Working-Class History, 1832–1982 (Cambridge, 1983), 226–27, 234.Google Scholar The “language of fatalism,” as Ellen Ross has remarked about London slum mothers, may have been “the safest posture for the[se] women to adopt with middle-class professionals.” Ross, , Love and Toil: Motherhood in Outcast London, 1870–1918 (New York, 1993), 98, 167.Google Scholar
184. See, for example, the case of Ethel Flintham: South Western Stan January 14, 1938.
185. R. M. Jackson, The Machinery of Justice in England, 152.
186. Final Report of the Committee on Procedure in Matrimonial Causes, Parliamentary Papers 13 (1946–47) (Cmd. 7024): 5–6, 13–14; Dawtry, Frank, “Whither Probation?” British Journal of Delinquency 8 (January 1958): 184.Google Scholar
187. Mullins, . “Conciliation in Divorce Cases,” Quarterly Review 285 (July 1947): 376Google Scholar; Mullins, , “Divorce in the Post-War World,” Quarterly Review 279 (October 1942): 155–67.Google Scholar Cf. The Magistrate (July-August 1938), 81; and Justice of the Peace 105 (July 12, 1941): 386.
188. Report of the Departmental Committee on Grants for the Development of Marriage Guidance, Parliamentary Papers 17 (1948–49) (Cmd. 7566): 14–15; The Times November 21, 1938; Sanctuary, Gerald, Marriage Under Stress (London, 1968), 13–14.Google Scholar
189. Royal Commission on Marriage and Divorce, Parliamentary Papers 23 (1955–56) (Cmd. 9678): 97.
190. Smart, Carol, The Ties that Bind: Law, Marriage and the Reproduction of Patriarchal Relations (London, 1984), 71–72, 75–76Google Scholar; McGregor, Social History and Law Reform, 50–52. See also Bottomley, Anne, “What is happening to family law? A feminist critique of conciliation,” in Women-In-Law: Explorations in Law, Family and Sexuality, ed. Brophy, Julia and Smart, Carol (London, 1985), 162–87Google Scholar; and Eekelaar, John, Family Law and Social Policy (London, 1978), 199–201.Google Scholar
191. Szwed, Elizabeth, “The Family Court,” in The State, the Law, and the Family: Critical Perspectives, ed. Freeman, Michael D. A. (London, 1984), 276–77Google Scholar; Anne Bottomley, “Resolving Family Disputes: A Critical View,” in ibid., 296–97, 300.