Abolish The King's Proctor
BY E. S. P. HAYNES.
NV7N the King's Proctor to-day incurs public isapproval from Mr. Justice McCardie and Sir Ernest Wild I am reminded that my own attempts to express the same opinions more than twenty-five years ago were sternly kept under. With the exception of the Westminster Gazette and John Bull and the English Review, then edited by Mr. Spender, Mr. Bottomley, and Mr. Austin Harrison respectively, I found it im- possible to obtain publicity for what I regarded as a grave abuse at a. time when the discretion of the Court was much more restricted in its exercise than it is to-day fn favour of:a guilty petitioner.
Yet the institution of the King's Proctor had no real roots in law or morals. It was in 1857 that divorce was- first made possible in England without an Act of Parliament and in order to prevent anything like divorce by consent every petition had to be tried by three judges. This caused such arrears is other work that in 1860 a Probate official, hitherto known as the King's Proctor, was given power to intervene after a decree nisi had been obtained, to show cause why the said decree should 'not be made absolute " by reason of the same having been obtained by collusion or by reason of material facts not brought before the Court." To do that he had somehow to secure evidence of the collusion on the suppressed facts. When the Bill came up to the Lords they annoyed the Commons by inserting a proviso that the King's Proctor should be reimbursed by the Treasury for any deficiency of costs. This principle was extended by an Act of 1878, which enabled any petitioner to obtain costs against the King's Proctor when he could prove that the intervention was " nix? reasonable." Even to-day, therefore, the taxpayer is liable for the blunders of the King's Proctor as well as for the heavy expense of financing a standing army of detectives in England whose activities are extended to hotels in the Riviera and other pleasure resorts on the Continent.
Efficiency in this lux-English system of espionage is far to seek. I have known it exercised on an elderly and most respectable officer of the Crown when it was in fact his son whose decree was in question, and it has been freely rumoured that some solicitors are supposed to gain by private influence immunity for their clients. Collusion can only be detected where the lay client chooses to dispense with counsel and/or is guilty of a crude stupidity which naturally annoys any judge who has to administer a ridiculous law. All that the King's Proctor usually discovers is some act of adultery (sometimes twenty years old) on the part of a petitioner who has obtained a decree nisi, and the effect of a success- ful intervention is to unite indissolubly two spouses who have probably for years never seen each other.
The old Canon Law took all precautions to prevent Separation by consent, whereas the English law encourages every kind of separation in every rank of life. In Scotland and all other countries where divorce exists, separation is justly regarded as against public policy, and in Holland, where divorce is obtained for adultery, no formal proof of it is required if it is admitted by the respondent, though the Court very sensibly requires the spouses to appear in order to give some assurance that a divorce is seriously desired and that all the consequences of it have been taken into 'consideration. Needless to say, the- Court being 'sensible does not concern itself with the private conduct of the parties outside the pleadings. Judging by the absurdity of most modern legislation in this country it is no doubt hopeless to expect any sort of divorce law reform to be based on sound morality or clear thinking. Even the two Buckmaster Bills which the House of Commons rejected did not tackle the King's Proctor or the doctrines of collusion and recrimination.
My suggestions in regard to his office are therefore put forward merely from the angle of public economy, although incidentally they would save a considerable amount of unnecessary perjury which again distracts from other crimes a considerable number of police officers. It is perhaps not wholly irrelevant to mention that Lord Desert (who was King's Proctor for many years) in giving evidence before the Royal Commission of 1910, stated that from his official experience he considered that his official activities were far from promoting social morality. Incidentally he estimated the number of actual divorces by consent at 75 per cent.
Assuming, however, that all the clotted nonsense that masquerades as ecclesiastical tradition must be preserved I suggest that we should follow the admirable common sense of the Scots law in regard to recrimination (and' generally speaking the adoption of that law as a whole would clean up the Augean Stable of the English law better than most proposals for reform). In Scotland the mutual guilt of both spouses does not bar divorce ; but it does bar the claim of either spouse for alimony against the other. In this way each spouse has the strongest motive to bring all the facts of the marriage before the Court, whereas under the English system concealment (and sometimes even perjury) may be necessary for the wretched spouses to obtain a divorce at all. From the Scots point of view our vast expenditure on the King's Proctor and his myrmidons is as ridiculous as it would be to set up a horde of State spies to detect collusive libel actions, which are probably more frequent than the layman supposes.
It is, of course, necessary to protect any Court against abuse of its process by gross fraud or perjury ; but the Courts in Scotland are quite adequately protected in this respect by their Attorney-General, as the Courts would also be here if the King's Proctor's staff were
pensioned off or switched off to other varieties of State espionage to-morrow. About twenty-five years ago a client of mine was involved in a trumped-up charge of collusion before Lord Salvescn in Edinburgh and I was at the time much impressed by the fairness and thoroughness of the investigation.
The whole theory of the King's Proctor in divorce was conceived by men with dirty minds who revelled in the discovery of secret scandals and were opposed to divorce in principle. If divorce could not be abolished then the best solution was to make it an almost im- possible obstacle race. There is, of course, a great deal to be said for abolishing divorce altogether in order to secure for the children of any marriage the continuity
of a family roof, even if both parents are sometimes
at variance or indulge in sexual irregularity outside the home. But there is nothing whatever to be said for wasting public funds on prurient espionage and scandalmongering by State officials or for invoking the sanctions of so-called " morality " to perpetuate the separation of miserable spouses who have every reason to demand the legal confirmation of a divorce which already exists in every other sense.
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