Poverty and Civil Litigation Author (S) : John Macarthur Maguire Source: Harvard Law Review, Feb., 1923, Vol. 36, No. 4 (Feb., 1923), Pp. 361-404 Published By: The Harvard Law Review Association

Poverty and Civil Litigation
Author(s): John MacArthur Maguire

Source: Harvard Law Review , Feb., 1923, Vol. 36, No. 4 (Feb., 1923), pp. 361-404
Published by: The Harvard Law Review Association
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HARVARD
LAW R EV IE W
VOL. XXXVI FEBRUARY, 1923 NO. 4
POVERTY AND CIVIL LITIGATION
A MAN who is poor, friendless, and a stranger has some

small claim against a great corporation. He starts suit in
one of our state courts. The defendant demands security for
costs. The costs really mean nothing to it. The claim itself
means little more. But this is an easy way to get rid of the case.
The plaintiff has no security to give. What happens to his
suit?'
When a situation like this arose twenty-three or twenty-four
hundred years ago under the Roman republic, the poor man
was protected. The law required of him only such security as
he could furnish.2 When an almost identical situation arose
eight hundred years ago under Henry I of England, it is said
that the ordinance requiring security was mitigated for the poor
by a provision " that those who had not sufficient present se-
curity should pledge their faith to make satisfaction to the utmost
of their power." 3 And so we have it on the good authority of
1 This is not an imaginary situation. See Campbell v. Chicago, etc., Ry. Co.,
23 Wis. 490 (i868). Wisconsin lawyers say that the situation in their state has
been changed for the better, but it seems still to be the same, except as to claims
for work and labor. 1921, WIS. STATUTES, ? 3782.
2 HUNTER, ROMAN LAW, 3 ed., 17, 968. COOPER, INST. OF JUSTINIAN, append
I, p. 656 (I8I2). For comment, see SANDARS, INST. OF JUSTINIAN, Pp. xiii et seq.
(i898). Under these Roman laws (the Twelve Tables) security required was
not for costs but for appearance at trial, and was exacted from the defendant.
Lane v. Townsend, I4 Fed. Cas. (no. 8054), IO87, 1092 et seq. (I835), describes
a Roman law suit.
3 MIRROR OF JUSTICES, 7 SELD. SOC. 14 (I893). In citing the Selden Society's
publications, I give for convenience volume, page, and the date stamped on the

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362 HARVARD LAW REVIEW
Britton that during the reign of Edward I, a great judicial

reformer, a poor man might be permitted to " sue his plaint
upon the pledge of his promise only; and then he shall find no
other security to the sheriff." 4
The democratic principle of equality before the law found
partial expression in the mediaeval provisions just quoted. We
can trace the gradual evolution of this principle under the
common law into its broad and firmly established modern form.
We should expect to find that provisions for speeding the litiga-
tion of the needy had correspondingly ripened from mere indul-
gences into categorical imperatives of common law practice.
But that has not occurred. Sometimes there has been actual
retrogression. In more than one of the United States, such. a
plaintiff as I have described may be cast out of court and barred
from testing the merits of his cause if he cannot produce security
or a bondsman.5 Nor is this by any means the whole story.
Poverty, often through the application of some rule of law
which otherwise seems eminently reasonable, blocks a civil
litigant's path at every stage of the proceedings. A penniless
suitor may lose his day in court because he has no ready money
to pay the fees for his writ, for serving process, for entering suit,
and for other similar official acts. He may get into court, but
be helpless because he cannot pay for a lawyer; or he may become
helpless in the midst of the case because he lacks funds to bring
his witnesses, to pay a stenographer, or to pay a printer. He
must, in short, surmount four financial barriers: costs, fees,
expense of legal services, and sundry miscellaneous expenses
incident to litigation.
cover. This date does not always coincide with the date of actual issue. As
to this particular reference, I realize of course that the Mirror is often more
interesting than veracious. But the next note somewhat fortifies its statement
here.
4 BRITTON, Nichols' trans., ed. igoi, Legal Classic Series, 243 (star paging
I-II7). The quoted passage occurs in a section relating to disseisin.
5 For example, a non-resident plaintiff in Massachusetts, MASS. G. L. C. 231,
?? 42-48. See also the laws of Nebraska (I922, COMP. STAT. ?? 9III, 9496) and
of Delaware (I9I5, REV. CODE OF DEL., C. I28, ? II), the first being more exacting
than Massachusetts and the second calling for security from plaintiffs discharged
in bankruptcy or insolvency after suit brought. These are a few only of many
examples which might be adduced.

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POVERTY AND CIVIL LITIGATION 363
These barriers are not separate fences, to be pulled down

one by one. They form a maze of obstacles throughout every
law suit. It might seem, at first blush, that if we took the
relatively simple step of abolishing costs and fees for poor men
we should have done enough. Let the beneficiaries supply their
own lawyers. That is fatally wrong. The leading cause of
past and present breakdowns in well-meant schemes for solving
this great problem has been the neglect properly to supply
expert legal assistance. But there were and are many other
contributing causes. History. reveals an extraordinary story of
excellent intentions and earnest efforts terminated by lamentable
failures. If, in our desire to improve conditions now existing
in America, we would act more successfully, it must be by three
steps and not by one blind leap. Our first task is to learn all
we can from what others have lived through. We may then
intelligently examine the methods now employed in England and
the United States. And finally we can consider how careful
combination of the best feature' of these plans might provide
a really practical guaranty that every man may " obtain right
and justice freely, and without being obliged to purchase it." 6
POOR PERSONS' PROCEEDINGS IN ENGLAND ASIDE FROM STATUTE
The statute II Hen. VII, c. I2 (I495), which covered only

actions and suits at law, is usually quoted as the foundation of
those proceedings technically described as being in forma
pauperis. In a sense, perhaps, this is true, but we must go
much further back to trace the growth of the idea and to ap-
preciate the act's historical setting. Nor did the older non-
statutory proceedings soon lose their practical effect. For
example, at a much later time when the common law courts
had denied that they possessed statutory power to let defendants
proceed in forma pauperis, chancery was able to relieve respon-
dents as well as complainants, because the act of I495 neither
gave nor restricted its powers.7 No doubt this more liberal
G Massachusetts Declaration of Rights, art. XI. Other states have taken o
the substance of this article.
7 Philipe v. Baker, I Carr. & Payne, 533 (I824); Everson v. Matthew, 3 W. R.
159 (I855); Od10eld v. Cobbett, i Phil. 613, 6I5 (I845); CoM. DIG., tit. Forma
Pauperis, notes (a) and (b).

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equity practice by force of example contributed to the ultimate

liberalizing of the practice at law.
The obviously appropriate starting point for our inquiry is
Magna Carta, the fortieth section of which reads:
Nulli vendemus, nulli negabimus, aut

differemus, rectum aut justiciam.
Had this section been haloed in I 2I5 with its modern connota-
tions, it might have proved the open sesame to swing wide the
doors of the courts to the poor and oppressed. Indeed, some
argued for its broad humanitarian interpretation at a very early
time. The Mirror of Justices asserts that the Charter was
" disregarded by the chancellor who sells remedial writs and
calls them writs of grace." 8 But it is hard to believe that
section 40 was originally meant to create a judicial Utopia.
King John, commonly deemed the worst king England ever
had, yielded as little as possible of his arbitrary power, and that
grudgingly. The steering committee of barons who superin-
tended the observance of the Charter cared a great deal less
for the welfare of the common folk than for shoring up the
tottering bulk of feudalism.' The times were rough and crude,
the social and economic system harsh. Little ten year old boys
might beg their way about the countryside and starve or freeze
in the hedgerows.10 The people as a whole can have had small
conception of intelligent and even-handed justice as we now know
it. To them a law suit probably was still a curious hocus-pocus
of technicality involving factors of divine revelation, gambling,
and brute force.1' It seems likely that the guaranty against
the sale, denial, and delay of justice was contemporaneously
intended only to check abuses which would be obvious even in
such a society - for instance, to prevent capricious royal inter-
ference with the normal course of legal proceedings, to mini-
8 7 SI-LD. SOC. i8o (I893). Compare op. cit., p. i6i at par. 68. The first
of these passages refers to the reissue of Magna Carta in which the original c. 40
had become C. 29.
9 George B. Adams, " The Critical Period of English Constitutional History,"
5 A:M. HIST. REV. 643, 650.
10 Such cases are found in the Eyre Rolls. Eyre of Kent, 6 & 7 Edw. II,
24 SELD. SOC. lXXXViii (I909).
11 J. B. Thayer, "The Older Modes of Trial," 5 HARV. L. REV. 45, 47; I
BRACTON'S NOTE BooK, Maitland's ed., I3I.

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mize corruption, to hold the king's fees and fines on a more

reasonable level, but certainly not to abolish entirely either these
or other charges incident to litigation.12
Yet it must not be assumed for a moment that there were
no forces in the administration of justice which worked on the
side of the poor man. By implication, at least, we may judge
that one early form of applied Christianity was what we now call
legal aid work. Between the ninth and thirteenth centuries a
number of Church canons and regulations forbade ecclesiastical
lawyers 13 to pursue a general practice in the temporal courts.
It was customary, however, to except from these prohibitions
cases in which the legally skilled ecclesiastics represented
or assisted poor people.14 The ecclesiastical courts also worked
out an in forma pauperis procedure not later than the end of the
thirteenth century,15 By Oughton's time (I738) this procedure
and the procedure in the common law courts were running along
closely parallel lines.16 Nor has this old Church influence even
yet spent its force, for the modern English courts of probate
refer back to it as a precedent.17
Turning again to the secular courts, we find it an accepted
maxim under Henry III (I2i6-I 272) that the poor need not
pay for their writs.18 Judges and commentators intimate that
until the statutes requiring award of costs, common law courts
had inherent power to entertain gratuitously the plaints of the
12 MCKECHNIE, MAGNA CARTA, 2 ed., 395-398; 25 SELD. Soc. 64, n. 3I (I9IO).

Maitland finds that in the time of Bracton: " The open sale of justice is becom-
ing a thing of the past; but there are sundry procedural advantages for the grant
of which a mark or demi-mark is expected, and occasionally heavy sums are
offered and accepted, even a thousand pounds." I NOTE BOOK, I29-I30. The last
reference is to Case iio6 (dated 1234-I235), which is printed in volume 3 of
the NOTE BOOK. And see 3 BL. COM. 274.
13 Dugdale inclines to the opinion that the first English lawyers were ecclesias-
tics. See ORIG. JUR., cap. VIII of Lawyers, pp. 2I et seq., in 3 ed. of i68o.
14 Herman Cohen, "The Origins of the English Bar," 3I LAW Q. REV., 56,
72-73. 22 SELD. Soc. Xvi (I907); DUGDALE, ORIG. JUR., boc. cit.
15 See OUGHTON, ORDO JUDICIORTJM, tit. XLIX. p. 82, referring in a note to a
statute of Archbishop Winchelsey dated I295. I have not been able to consult
the full text of the statute.
16 OUGHTON, op. Cit., tit. VIII-X (pp. 23-26), tit. XLIX (p. 82).
17 See, for example, Richardson v. Richardson & Plowman, [I895] P. 276,
277.
18 I POLLOCK AND MAITLAND, HISTORY OF E: GLTSii LAW, 2 ed., 195.

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needy.19 How much the power was exercised is questionable.

One must not forget the intense thirst for fees which prevailed
at this period of judicial development. In any event, the costs
system began to operate in I278.20 From that time until the
statutes of I495 and I532, the common law judges could not
give penniless suitors a full measure of relief. They might help,
of course, along lines other than the remission of costs. A rather
late instance of such helpfulness has come to light. In I476
" one John Brown was present to be the presignator of the poor
in the Common Pleas * * * and it was said that if any poor
man would swear to him that he was not able to pay for
the entry of pleas * * * then he ought to enter the pleas
without taking anything for his labor * * * and this was done
by the advice of the justices." 21
But the great early source of poor men's justice appears to
have been the king's prerogative, more or less directly exer-
cised. The notion of personal sovereignty carried with it a
paternal, or at least a proprietary, duty to enforce fairness and
right between subject and subject. At first this duty may have
been discharged fitfully and unsystematically by the king in
person. Indeed, the king's personal intervention does not end
entirely for hundreds of years. But we soon come to much more
business-like procedure in connection with the operation of
General Eyres.22 From time to time the king sent into every
19 See Rex v. Wright, 2 Stra. I04I (I735), more fully reported in Cas. K. B.
temp. Hardw. 200, 240. This was a criminal proceeding, and it was said that
as the prosecutor could have no costs the defendant might be admitted in forma
pauperis. BAC. ABR., tit. Pauper (B); COM. DIG., tit. Forma Pauperis, top of
star page 44I.
20 STATUTE OF GLOUCESTER, 6 EDW. I, c. I; BAC. ABR., tit. Costs (A); HUL-
LOCK, LAW OF COSTS, ed. i8io, I-4.
21 Y. B. I5 Edw. IV, 26 b. This is a well-known passage. Manning as-
sumes on the strength of it that the presignator was a standing officer in
Common Pleas. SERVIENS AD LEGEM (I840), 4I n. (d). And see Anonymous,
i Rolle R. 88, pl. 39 (i6I5), containing a somewhat obscure reference to an
official so entitled. Apparently John Brown's appointment in I476 was a novelty,
for his duties and those of his clerks are carefully described. More information
might be extracted from later Year Books. But the existing indices are not
helpful. Brown's appointment is indexed under "Office." The terms "Presig-
nator " and " Poor" or " Poer " do not appear in the index to any edition of
this Year Book which I have examined.
22 For a brief account of the General Eyres see W. C. BolIand's charming
lectures, THE YEAR BooKs (Cambridge University Press, I92I), pp. 55 et seq.

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county a body of justices who acted as his personal representa-

tives for the purpose of cleaning up all pending legal business.23
One of their functions was to right wrongs of every description
which might go unredressed because the ordinary courts were
too slow, too expensive, too far away, or too much under the
thumb of the wrong-doers. The Justices in Eyre were also to
deal appropriately with cases in which the common law pro-
vided no remedies.24 Numerous private complaints were
presented not (as at common law) by writ, but by bill.25
Whether or no the use of these bills was confined to the poor,
it is certain that poor persons presented a great many of
them.26 Bills in Eyre had no fixed form; they seem not to have
been drawn by lawyers; probably there was no filing fee; if
a bill stated the case defectively, it might be amended on the
spot.27 Pledges for prosecution were customary, but where a
complainant could not find pledges the judge might permit him
to take an oath instead.28 The whole procedure was flexible,
simple, and untechnical. It was, in Mr. Bolland's words, " the
very beginning of our English equity." 29 Likewise it was the
beginning, or one of the beginnings, of poor men's courts.
Again and again these bills contain allegations of poverty,
distress, and hardship, allegations the more moving because they
come straight from the complainants and are not the conven-
tional woes of hired pleaders. Alice the daughter of Piers
Knotte says she " can get no justice at all, seeing that she is
poor and that this Thomas is rich." " Elsewhere she says:
" For God's sake, Sir Justice, think of me, for I have none to
help me save God and you." 31 John Feyrewin at the end of a
pitiful story tells the justice that " I have not a halfpenny to
Most of the references in the immediately following notes are to other writings
by Mr. Bolland.
23 24 SELD. Soc. xvii et seq. (I909).
24 27 id. xxviii, xxix (I9I2).
25 27 id. xxi et seq. (I9I2).
26 27 id. xxvi, xxviii (I9I2).
27 27 id. xxv, xxvi, xxviii (I9I2); 30 id. xix (I9I4); on the point of
amendment, see also 30 id. I55, bill I53 (I9I4).
28 27 SELD. SOC. XXiX (I9I2); 30 id. 3 (bill 5), 45 (bill 69) (I9I4).
29 THE YEAR BooKs, 57.
30 30 SELD. SOC. 3 (I9I4).
31 30 id. 2 (09Q4).

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spend on a pleader." 32 Edith, widow of Richard of Darlaston,

prays " remedy of your charity for God's sake, for she is poor,
and by these things she hath been brought to beggary." 3 In
this last case, the complainant says that she " made and delivered
to the sheriff a bill * * * and is cheated of it, and she knoweth
not how, save it be because the af6resaid Amice is rich and is
the sister of Sir Roger of Penlesdown." 34 William, son of
Hugh of Smethumilne, says: " And I pray you, for your soul's
sake, that you will give me remedy of this, for I am so poor that
I can pay for no counter (lawyer)." 3 Alan, son of Alan
Plotman, speaking for himself and his mother " for that they
are poor folk," asks "that you will, an it please you, grant
them a serjeant for them." 36
Next, having found this sort of equity administered in General
Eyre, we should expect to find it continued in the early Chancery
practice. This indeed proves to be the case. In I4I9 the King
wrote the Chancellor " in especial that ye see that the porer
partye suffre no wrong."3 Both before and after this date
the Chancellor, or the Council under his presidence, took juris-
diction or was asked tc take jurisdiction because of " the great
poverty and weakness of the said suppliant";38 "considering
that the said suppliant is so poor that he can in no wise pursue
the Common Law ";3 " because she (the suppliant) has nothing
wherewith to sue the common law";4` because "youre pore
bedeman, John Bushop, * * * is not of power to sue his
remedys bi the commune lawe"; " and "in consideration of
the fact that the suppliants because of poverty cannot have
recovery by the common law." 42
32 30 SELD. Soc. 6 (I9I4).

33 30 id. 44 (I9I4)-
34 30 id. 45 (I9I4).
35 30 id. 47 (I914)-
36 30 id. 2I, xlviii (I9I4).
37 io id. Xiii (I896).
38 10 id. 4I (I896), in a case arising after 1397.
39 io id. 47 (I896), in a case arising not later than 1399.
40 io id. 77 (I896).
41 IO id. I34, I35 (I896), in a case between 1443 and I450. And see
id. xxiii.
42 36 id. 82; also I20, XXiii (I9I8). The first case is supposed to date
from I393.

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Those other aspects of the Council, Star Chamber and the

Court of Requests, also gave aid and comfort to the poor. In
Prior of Bathe v. Abbot of St. Augustyn's (I489)43 one ground
for Star Chamber's jurisdiction was stated to be "great and
grevouse pouertee concernying eyther of the parties that soo
suyth or complayneth." The Court of Requests was originally
known as the Court of Poor Men's Causes." Active at least as
early as I493, it originally attended the royal progresses.45
After about I525 it usually sat in Westminster.46 Despite
some accounts to the contrary, this tribunal did a roaring busi-
ness, gained great popularity, and retained that popularity until
it " died a natural death " in or a little after I642.4 Its name
was adopted by other courts, both contemporaneous and subse-
quent, which successfully dealt with the trial of small causes.48
The procedure of this court was equitable.49 Its practice per-
mitted local trials, even after the court's headquarters became
settled at Westminster.50 The judges were incorrupt.5' In
numerous respects it seems to have represented an enlightened
effort to bring justice to the poor. Without adducing many
examples of the cases heard, we may note that the Court of
Requests dealt, and dealt firmly, with grasping landlords. The
problem of landlord and tenant became acute about the end of
the fifteenth century. Then and for many years afterward the
tenants' privileges were curtailed, their rents raised, their
occupancy made uncertain.52 No court could hope to check the
economic forces which brought on these changes, but both Star
Chamber and the Court of Requests did something for the
tenants. The latter court flatly stopped one attempt to raise
rents over one hundred and twenty per cent.53 In other cases
43 i6 SELD. SOC. 2I, lxxxi, lxxxii (I902).

44 I2 id. xii (I898).
45 Id.
46 I2 id. xiii (I898).
47 I2 id. xiv, xlvi, li (I898).
48 I2 id. liii (I898).
49 I2 id. xx, 57, 59, 67, IO, (i898). Of the foregoing references, the
last four are to complaints or orders taking familiar equitable form.
50 I2 id. xxi (i898)
51 Id.
52 I2 id. liv et seq. (I898).
53 Inhabitants of Whitby v. York, I2 id. I98, lxviii et seq. (I898).

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it modified and reduced the original demands of the land

owners.54
So far we have glanced at the General Eyre, the practice of
the Council (including Star Chamber and the Court of Re-
quests), and also the early chancery practice (again an offshoot
of the Council). All these manifestations of the royal pre-
rogative were to some extent from the beginning, and more and
more as time went on, competitors with the common law courts
for popular favor. The hard-headed observer may well con-
clude that the amelioration of common law practice finally
came less from love for the poor than from regard for expedi-
ency. Seen in this light, the situation contains elements of
humor. Instead of being ground to powder in the prolonged
struggle between the Council and the common lawyers, the king's
impecunious subjects obtained some favors from both sides.
So, during the course of a bitter and complicated legal campaign
which ran from I494 to I538, a respondent in the Court of
Requests plaintively alleges that before the Common Pleas his
opponent "was moche Fauored and Was Admytted in Forma
pauperis and had assigned to his Councell iiij serieaunttes at
the lawe and his attourney to geue hym Councell without payng
eny Feez For the same." 5
But one should not look a gift horse in the mouth. What-
ever the true reasons for passage in I495 of the in forma pauperis
act, it was an excellent bit of legislation and seems, so far as
the common law courts were concerned, to have opened a new
era with regard to poor persons' suits. Before taking up its
merits and shortcomings we may profitably criticize the action
of the various tribunals already described.
The humanitarianism of the English kings from I2I6 to I495
is rather surprising. They did or meant to do much more
toward helping their poor subjects enforce legal claims than
many of our states are doing today. I do not mean, of course,
that it was more comfortable on the whole to be a poor man
during the thirteenth, fourteenth, and fifteenth centuries than
is now. Distinctly the reverse is true. But, setting aside the
54 Inhabitants of Burnham v. Ffynes, I2 SELD. Soc. 62 (I898); Kent et al. v.

Seynt John, id. 64; Foreacre et al. v. Frauncys, id. ioi.
55 Selby v. Mulsho, 25 SELD. Soc. at 3I9, especially n. 33, lix et seq. (I9IO).

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unavoidable roughness and hardship of the old days, the almost

equally unavoidable oppression of the masses by the classes,
the frequent injustice arising from force and corruption,56 it
remains clear that there were courts according to the theory of
the law more open to the needy than are, for instance, the courts
of Massachusetts at this very moment.57
This, however, was theory. The plan failed lamentably in
practice. Enough popular literature has come down to us to
prove that penniless men of the bad old time suffered, and
suffered bitterly, from the impossibility of pushing forward
their legal business. Read Piers Plowman, or the London
Lackpeny as quoted by Mr. Herman Cohen in his articles on
"The Origins of the English Bar." 5 The latter poem de-
scribes a pilgrimage to " Kynge Bench," " comon place," and
" the clarkes of the Chauncerye " in quest of justice, every
verse concluding with the substance of the line " for lacke of
mony, i might not spede." Despite Mr. Cohen's shrewd com-
ment that the Lackpeny does not give us the facts of his case
and may not have approached the right officials, I am inclined
to think that he lived in a hard world. One reason for the
world's harshness was the practical inadequacy of those legal
proceedings open to the poor.
The General Eyre was an imperfect poor man's court because
it became available only at infrequent intervals - Pollock and
Maitland say not much more often than once in seven years.59
Also the bills in Eyre formed only a fraction of its business; it
had numerous and most unpleasant other functions which made
its coming a terror to the whole country.60 Besides, the General
Eyre fades from the picture during the fourteenth century.6"
The Chancery -considered in its mature status as a court
-even more greatly failed to meet the needs of the situation.
Its procedure was too dilatory for the poor and too complicated
56 See, .vn the point of oppression, 30 SELD. SOC. 1 et seq. (I9I4).

57 Massachusetts has no in forma pauperis practice whatever. See notes I04
and Io6, infra.
58 36 LAW Q. REV. 274, 28I; see also the reference in n. 56, supra.
59 I HISTORY OF ENGLISH LAW, 2 ed., 544.
60 I op. cit. 20I, 202; and also 2 op. cit. 644 et seq.; 24 SELD. SOC. Xxxvii
et seq. (igog).
61 I HOLDSWORTHI, HISTORY OF ENGLISH LAW, 3 ed., 272.

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for them to control without costly expert assistance.62 Neither

could Chancery come to poor folks' doors as did the Justices
in Eyre.
The Council before the ramification of its functions had little
time to deal decisively with anybody's causes.63 After this
ramification Star Chamber, of course, had to do with matters in
the nature of crimes rather than of private wrongs. The Court
of Requests, admirable in conception and early functioning, lost
greatly by the substitution of dilatory practice for what had
once been summary and the consequent increase of expenses.64
Beyond all this, it must be remembered that there was a constant
struggle between the common law courts on one side and the
Council and its courts on the other. Irrelevant as this struggle
may have been to any questions raised by the litigation of the
poor, it forced them to embark their hopes in a fabric always
battling against head winds and ultimately driven upon the
rocks of public displeasure. The courts can be effectively
opened to poverty stricken suitors only by facilities designed
that specific purpose and not forced to bear the burden of col-
lateral or entirely disjoined purposes meeting resistance for
reasons peculiar to themselves.
In brief, these early attempts to meet the difficulty through
mere indulgence on the part of King, Chancellor, or Judge broke
down because their authors had no real understanding of the
fact that the burden of poverty in civil litigation manifests itself
in several aspects which are so closely interrelated that the
problem must be solved as a whole or it cannot be solved at
all. While ameliorating the lot of the indigent suitor in one
way, in another they allowed the burden of poverty to crush
him. Dilatory proceedings in the courts robbed the right of
access to the courts of any genuine value to the poor. Proceed-
ings in the nature of in forma pauperis can afford substantial
relief only when geared to a judicial machine that performs its
functions with efficiency and despatch.
62 Counsel are assumed to have drawn even the earliest bills. IO SELD. SOC.
xxviii (i896). Sureties for costs were often required. Io id. xxvi.
63 36 id. xix-xx (igi8).
64 I2 id. xxi, lXXX, 38, i88, i9i (i898), but Mr. Leadham justly notes
that much work was done in forma pauperis; and see id. xcviii-xcix.

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THE EFFECT OF THE ACT OF I495 UPON POOR

PERSONS' PROCEEDINGS IN ENGLAND
The statute ii Hen. VII, C. I2, was meant to carry the poor
man through the ins and outs of an action at common law.
However, it undoubtedly influenced, and in its administration
was influenced by, the practice of Chancery and the Court of
Requests. Its terms are so sweeping and so full of construc-
tive suggestion that quotation in extenso is justified:
" Be it ordeyned and enacted by youre Highnes and by the Lordes

spirituall and temporall and the Comens in this present parliament
assembled and by auctorite of the same, that every pouer persone or
persones which have & hereafter shall have cause of accion or accions
ayenst any persone or persones within the realme shall have, by the
discrecion of the Chaunceller of this realme, for the tyme being writte
or writtes originall and writtes of Sub pena according to the nature
of their causes, therfor nothing paieng to youre Highnes for the seales
of the same, nor to any persone for the making of the same writte
& writtes to be hereafter sued. And that the seid Chaunceller for the
same tyme being shall assigne suche of the Clerkis whiche shall doo
and use the making and writing of the same writtes to write the same
redy to be sealed, and also lerned Councell and attorneyes for the
same, without any rewarde taking therfor; And after the said writte
or writtes be retorned, if it be afore the King in his Benche, the Jus-
tices ther shall assign to the same pouer persone or persones Councell
lerned by their discrecions which shall geve their Councelles nothing
taking for the same, and in like wise the same Justices shall appoynte
attorney and attorneies for the same pouer persone and persones and
all other officers requisite and necessarie to be hadde for the spede of
the seid duties without any rewards for their Councelles help and
besynes in the same; and the same lawe and ordre shalbe observed
and kepte of all such suytes to be made afore the Kingis Justices
of his comen place and Barons of his Eschequer and all other Justices
in Courtes of Recorde where any suche suetis shall be." 65
The act seems to make the common law courts more attractive
to the poor than Chancery or the Court of Requests, where, as
we have just seen, more or less delay and expense might be
encountered. Now, perhaps for the first time, needy suitors
65 2 STATUTES OF THE REALM, 578.

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may commence actions without paying fees.66 In the next

reign they will be exempted from costs in case of non-success.
If the rules of law be complicated, they are to have the aid of
lawyers gratuitously. If the law be slow, at least it may prove
as speedy for them as for anybody.
With this, we enter upon a stretch of almost four centuries
during which the legislative situation remains absolutely con-
stant. For the first century and a half the course of events
is obscure. The contemporary reporters were too busy with
other matters to tell much about the short and simple causes of
the poor. We know that the Court of Requests transacted
much business.67 There is complaint that it too liberally enter-
tained claimants who lacked both money and veracity.68 Pos-
sibly the common lawyers, fighting fire with fire, emulated this
liberality. Francis Bacon manifests only tempered optimism.
Under the statute of Henry VII, he remarks, "poor men be-
come rather able to vex than unable to sue." 69 The law, he
seems to say, is a good one, perhaps the best possible, but it
leaves much to be desired. The Orders in Chancery for I623
complain of a plethora of paupers' suits,70 and for I687 speak
of poor men's causes as having " savoured more of clamour than
of any equity." 71 Then, too, when the reports begin to contain
brief notes on in forma pauperis, the comment has a sour tang,
as if in reaction from a too-sweet earlier period. Justice for a
man who cannot pay is very much a matter of favor. Unless
he behaves himself strictly according to the court's ideas of
propriety, he may be dispaupered;72 he may not have a new
trial;73 he may not remove his cause out of an inferior court.74
If he is dispaupered, if he becomes non-suit, perhaps even if he
66 See 25 SELD. SOC. 3I9-320, n. 33 (I9IO).

67 I2 SELD. SoC. xx, xlvi-l (I898); BEAMES, GENERAL ORDERS IN CHANCERY
44.
68 I2 SELD. SOC. xCviii (i898).
69 Historie of the Raigne of King Henry the Seventh, 6 WORKS OF FRANCIS
BACON, edited by Spedding, Ellis, and Heath, i6i (I858).
70 BEAMES, GENERAL ORDERS IN CHANCERY, 50 (I8I5).
71 Op. cit., 284.
72 BAC, ABR., tit. Pauper (d); COM. DIG., tit. Forma Pauperis (A); Anony-
mous, ii Mod. 84, P1. 3 (I707); Taylor v. Lowe, 2 Stra. 983 (1734).
7 Anonymous, i Mod. 268 (I689).
74 Ibid.

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loses a trial on the merits, there is much talk of taxing costs

and giving him the choice between paying them and being
whipped. Thus Coke " dit que in cest case le Statute est que
il avera Corporall punishment." " Le Statute " is 23 Hen.
VIII, c. I5, exempting an unsuccessful pauper plaintiff from
liability for costs, but subjecting him to "other punysshment
as * * * shall be thought reasonable." Many respectable
authorities deny that there is adequate proof of a pauper's ever
having been whipped for any of these causes.76 However, the
conventional form of order for admitting a plaintiff to sue
in forma pauperis during the reign of Elizabeth contained this
clause:
"But if the matter shall fall out against the Plaintiff, he shall be
punished with whipping and pillory." 77
A very specific account of an order for flogging a female pauper

in I596 is adduced.78 Possibly Shakespeare had this very case
in mind when he made Celia reprove Touchstone by saying:
"You'll be whipped for taxation one of these days." 79 For the
implication may be: " You are a pauper in wit; you will end
by suffering the well-known fate of defeated pauper plaintiffs."
Now whether or not any poor litigant who lost actually was
whipped, this sort of threat is not wise or helpful. It puts a
premium on tough skins, and we all know that tough skins do
not necessarily accompany just claims. To be sure, the whip-
pings ceased before I700 to be threatened either as facts or
fables.80 But other restrictions supplemented them and took
their places.8" The judges soon emphasized a weak point of the
75 Anonymous, i Rolle R. 88, P1. 39 (I6I5).

76 The note in 3I HARV. L. REV. 485 well summarizes this contention. The
old practice books contain much along the same line.
77 Historical note annexed to Drennan v. Andrew, L. R. i Ch. App. 300, 30I,
n. 7 (i866).
78 Ibid.
79 As You LIKE IT, Act I, sc. 2, line go. The play was written in I598 or
I599. 4 GRANT WHITE SHAKESPEARE, 5 (IqI2).
80 Chief Justice Holt talked rather rashly of inflicting the penalty, but when
the case was actually put to him on motion said, "'he had no officer for that
purpose, and never knew it done." Anonymous, 2 Salk. 506, p1. (i) (i698).
81 See i MANNING, PRAC. COURT OF COMMON PLEAS (i8ig) I39, to the effect
that if " a pauper is chargeable with misconduct which, in other cases, is punished
by payment of costs, it seems the court will commit him."

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statutes. It was at first doubted whether a defendant could be

admitted to plead in forma pauperis, and then flatly decided
that he could not.82 This, of course, is a serious shortcoming.
Plaintiffs, rich or poor, have at least theoretical free will as to
commencing or refraining from litigation. But the poorest man
may be hauled in willy-nilly as a defendant, and may keenly
need gratuitous advice and freedom from costs. It is an
extraordinary proof of the difficulty of reform in England that
this perfectly obvious inequality was permitted to exist until
I883. Chancery and the Courts of Probate could be and were
broader minded.
Also, at a fairly early date a number of court rules sprang up.
Some rules were manifestly necessary, lest each separate judge
flounder through the procedural wilderness by a different route.
See, for instance, the perplexity into which courts fell from not
having it in black and white that a defeated poor litigant either
was or was not to be flogged. Unfortunately, though, most of
the rules adopted were ill calculated to further justice. There
was a perfectly Procrustean test of poverty. The scanty sum
of five pounds fixed the dead line between need and affluence.83
It was at least doubtful whether a man having more than five
pounds in possession could set up as a pauper, no matter what
debts he might owe or what mortgages were on his property."4
So, well along in the nineteenth century, the equity court ruled
that where a man had no property save a crop, and the crop
was tied up by an injunction against sale or removal, but was
worth a substantial sum, the owner might not defend in forma
pauperis.85 Grotesque technical perversion of a beneficial
82 Anonymous, ii Mod. 84, P1. 3 (I707); Rex v. Wright, Cas. K. B. temp.

Hardw., 200 (1735). Anonymous, Barnes' Notes of Cases in Common Pleas, 328
(I732-I756). And see Wiat v. Farthing, 2 Keb. 378, P1. 40 (i68o). This, of
course, refers only to common law. See n. 7, sutpra.
83 The exact date at which this limit was set is somewhat doubtful. HULLOCK,
COSTS (ed. I8IO), 222, speaks of it as old. 2 LEE'S DICTIONARY (K. B. and C. P.,
I825), IOO9, confesses inability to find the origin. The Court of Requests had
some such limit. I2 SELD. SOC. lXXXV (i898). OUGHTON. ORDO JUDICIORUM
tit. VIII, p. 23 (I738), gives the same limit for the ecclesiastical courts. i LILLY'S
REG., ed. I745, 85I, tit. Forma Pauperis, states the limit as ten pounds. This is
probably an error. TIDD, PRACTICE IN KING'S BENCH, Am. ed., I807, 67.
84 Anonymous, 2 Salk. 507, pl. (2) (I700).
85 Ridgway v. Edwards, L. R. 9 Ch. App. I43 (I874).

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doctrine could hardly go further. But suppose even that the

fatal five pounds were unencumbered money in hand. The
reader can fancy how far it would at practically any time since
I495 carry serious litigation in an English court.86
From a date prior to I 744 the rules also required that a
person seeking admission to sue in forma pauperis should
" have a Counsel's Hand to his Petition, certifying the Judge
to whom the Petition is directed, that he conceives the Petitioner
hath good Cause of Action." 87 The principle of this rule is
sound. Vain cases should be exposed in limine, rather than
made a basis of punishment after they have been tried and lost.
But the rule itself is one of the best imaginable illustrations of
a vicious circle. An applicant comes to court for gratuitous
legal service because he cannot beg or pay for a lawyer's
services; he finds that he must beg or pay for a lawyer's certifi-
cate before the court will hear him; and so his suit ends without
ever beginning.
Probably the most startling point of all in the administration
of poor persons' proceedings during this period is that despite
the sweeping language of the statute they came to be not free.
Impey's New Instructor Clericalis shows that about I786 the
minimum preliminary fees payable by a pauper applicant to
Common Pleas were six shillings and sixpence; if the applicant
were admitted and won a verdict of more than five pounds he
would have to pay something like four pounds more before
receiving a penny on his recovery.88 Similarly in King's Bench
the pauper litigant before actually collecting a copper would
have to pay four pounds, twelve shillings, and eight pence, or
just seven shillings and four pence less than the maximum he
was permitted to own at the commencement of suit!89
Comment would be wasted. Is it any wonder that the value
of proceedings in forma pauperis was little or nothing when the
two acts of Henry VII and Henry VIII were repealed in i883?
For our purposes, however, it is important to determine why
86 See the incisive comment of Lord Eldon in Spencer v. Bryant, ii Ves. Jr

49 (I805), where the rule worked unfairly in favor of the applicant.
87 LILLY'S REG., ed. 1745, 85I, tit. Forma Pauperis.
88 NEW INSTRUCTOR CLERICALIS, C. P. (I786), 566.
89 NEW INSTRUCTOR CLERICALIS, K. B. (I786), 494. I do not find these state-
ments repeated in later editions of Impey's books.

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courts which for four hundred years had been steadily improv-
ing their administration of justice as a whole should have taken
a broad plan for eliminating poverty as a hampering factor in
civil litigation and by hedging it about here and trimming it
there practically wreck it. The judges were not hard-hearted
men. They were driven to pursue the course they did because
the in forma pauperis legislation contained no administrative
machinery for the practical execution of its provisions. The
same law if introduced in America today would probably meet
the same fate. The procedure unless wisely administered is
susceptible of gross abuse either by persons whose causes are
not meritorious or by persons who are entirely able to pay the
prescribed costs and fees. So soon as the judges find that the
law is unbarring the gates for impostors, cranks, frauds, and
dead beats, with highly dubious or shady complaints, the inevi-
table reaction is to shut down. In forna pauperis proceedings
cannot operate beneficially unless those seeking relief under them
are intelligently sifted so that only the bona fide causes of hon-
est men are admitted as grist for the already overtaxed mill of
justice. This problem of separating the wheat from the chaff
through reasonably adequate investigation cannot be accom-
plished by the cumbersome process of hearings in open court.9"
Properly it is not a judicial function at all. It is a ministerial
task. It is idle and wrong to thrust an administrative burden
on over-worked courts unprovided with auxiliary administra-
tive machinery. This the draftsmen of the Act of Henry VII
unwittingly attempted to do and for that reason the act failed.
To pause on this note of pessimism would be unjust. Toward
the end of the period under discussion Parliament passed the
act establishing County Courts.9' As a full description of these
serviceable tribunals is easily accessible,92 my comment may be
90 The English appear to have tried and given up the scheme of open court
hearings. PEACOCK, RULES AND ORDERS OF THE COURT OF KING'S BENCH, 74
(i8ii) ; TIDD, PRACTICE IN KING'S BENCH, Am. ed., I807, 67-68; compare the old
chancery practice as shown by BEAMES, GENERAL ORDERS IN CHANCERY, 50, 284.
91 COUNTY COURTS AcT, I846, 9 & IO VICT. 3. 95, later amended and super-
seded by improved legislation. See, for example, COUNTY COURTS ACTS, I888, 5I
& 5 2 VICT. c. 43.
92 Samuel Rosenbaum, " Studies in English Civil Procedure; The County
Courts," 64 U. OF PA. L. REV. 357, 472, 583.

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brief. For present purposes I should term the County Courts

a limited revival of the Court of Requests at its highest efficiency,
with the added advantage that where there was but a single
Court of Requests the County Courts are numerous and con-
veniently distributed. County Court procedure to the eye of
an American at least is a model of speed, precision, and helpful-
ness. These courts are the only ones, or almost the only ones,
in England where litigants are reasonably sure of having their
cases actually heard on the days for which they are assigned.93
In the small simple causes which form the bulk of the litigation
of the poor the parties can personally present their claims and
defenses without incurring any expense for lawyers. The judge
or registrar will impartially assist in bringing out the vital facts.
I would not represent the County Courts as having attained
practical perfection. As fees and costs run in England, charges
for these purposes in the County Courts are moderate. But
even the County Court fees and costs are still large enough to
burden poor men very heavily. This trouble might be counter-
balanced by a comprehensive in forma pauperis practice. But
down to the present date no such general practice has been
developed in the County Court administration.94 Moreover,
these courts have only limited jurisdiction. They are not allowed
to handle divorce cases or probate proceedings.95 Nevertheless
it is probably fair to say that because the County Courts so
expertly grind their grist of small litigation valid demands for
relief in forma pauperis may be numbered by thousands rather
than by tens of thousands.
POOR PERSONS' PROCEEDINGS IN ENGLAND UNDER

THE RULES OF I 883.
Even though ninety-nine poor men's causes out of a hundred

were safe inside the fold of the County Courts -and this as
93 PARRY, THE LAW AND THE POOR, I46 (I914), implies this.
94 There are but a few straggling cases, such as Ex parte Miller; Miller v.
Long, g County Courts Chronicle, n. s., I70 (I883). Cf. COUNTY COURTS ACT,
i888, ? I64, 51 & 52 VICT. C. 43, and Perry v. London General Omnibus Co.,
[igi6] 2 K. B. 335.
95 PARRY, THE LAW AND MIE POOR, I44-I47, 296-297, argues forcefully th
point that County Courts should have divorce jurisdiction. And see that pleas
antly instructive little book, CONCERNING SOLICITORS, BY ONE OF THEM, IO
(I920). The author of the work last cited is E. S. P. Haynes, Esq.

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the preceding paragraph indicates would have been an over-

optimistic estimate - the remaining case was still worth saving,
particularly as it might involve a more difficult problem and a
larger sum of money than the others. So the rules which re-
placed the old laws in I883 might have led to a great advance.
They liberalized the practice in important respects. The five
pound limit was raised to twenty-five; defendants as well as plain-
tiffs might have relief.96 But the requirement of an opinion from
counsel and affidavit from a solicitor was continued without con-
structive provision for helping the would-be litigant to get these
vital documents.97 No doubt by reason of this requirement,
perhaps also by reason of the fact that the new practice was not
much advertised and was lost in the torrent of procedural reform
then sweeping through the English courts, the rules of I883
failed to ameliorate conditions for indigent suitors. Only a few
cases, mainly of slight significance, crept into the reports.98
The period from I883 to I9I4 serves again to emphasize the
fact that the problem of poverty in all its different aspects is
an indivisible problem. The rules of court removed certain
obstacles but left untouched the question of how a man could
pay a fee to counsel for a certificate if the applicant was too
poor to pay fees to the court. As in the earliest period of
experimentation we find the needy suitor lifted from one horn
of his dilemma only to be more firmly impaled on the other. To
summarize the situation in I914, I quote Judge Parry:
" Up to now the procedure in forma pauperis has not been of prac-
tical benefit to the poor except in enabling an occasional important
appeal to reach the House of Lords." 9
The House of Lords, which had and still has its own rules on
the subject, would have added to this comment that altogether
96 Order XVI, Rule 22. These rules appeared from year to year in the
ANNUAL PRACTICE. I take them from the edition of I894.
97 Order XVI, Rules 23, 24.
98 Re Roberts, 33 Ch. D. 265 (i886), shows a change in appellate pract
Tucker v. Collinson, i6 Q. B. D. 562 (i886), tells when pauper may appear
se; see also Jacobs v. Crusha, [I894] 2 Q. B. 37. There are other less gener
interesting cases.
99 THE LAW AND THE POOR, I84 (I9I4). 47 L. J. 48-50 (I9I2), speaks of
the system as next door to worthless.

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too many unimportant and baseless cases also came up.'00 The
time had become ripe and over-ripe for genuine reform, and
after much drafting and redrafting, backing and filling, a really
fundamental change was made. This change goes so far in the
right direction that it may well serve as an introduction to
general recommendations. Therefore I postpone discussion of
what has been done in England since I9I4, and now turn aside
from strict historical order to outline the situation in the United
States.
POOR PERSONS' PROCEEDINGS IN THE UNITED STATES
It is a Hibernicism, but I trust a pardonable one, to say that

the keynote of poor persons' proceedings in this country has
been discord. Our law might, of course, have developed more
or less symmetrically out of the early seventeenth century
English practice. Some start along this line seems to have been
made. Massachusetts, for example, in I642 passed an act
referring to admission of parties in forma pauperis."'0 Pre-
sumably the intention was to adopt English statutes and rules,
since there is no particular description of the manner in which
the courts shall proceed. But the old learning and customs
were plowed under while our pioneers created a new country
out of the wilderness.102 One may well doubt whether until afte
100 Blair v. North British etc. Co., I5 A. C. 495 (I890). This particular case
came up from Scotland, which has its own time honored in forma pauperis system
dating from I424 or I425 and said to work excellently. For the old act embodied
in one of the very earliest Scottish statutes, see SKENE'S LAWES AND ACTES OF
PARLIAMENT (I424-I597), 6; for approving comment, 47 L. J. 49 (I9I2); there
are also references in HASSARD-SHORT, PRACTICE IN 'POOR PERSONS' CASES, Xi, Xii
(I9I6); and see R. H. SMITH, JUSTICE AND THE POOR, 26, 248 (I919). I42 L. T.
2 (igi6) points out that the volume of business in Scotland is small.
101 CHARTERS AND GENERAL LAWS OF MASSACHUSETTS BAY, c. 5, ? 4, p. 45
(I814). And see COLONIAL LAWS OF MASSACHUSETTS, ed. i66o, reprinted I889,
tit. Actions, ? 3, top paging I2I; same (ed. I672, reprinted I887), tit Actions,
?4, p. 2.
102 Like all generalities, this is somewhat inaccurate. Our early federal
admiralty practice, without the aid of statute, bore the English stamp in the
matter of poor persons' proceedings. The Arctic, I Fed. Cas., no. 509 A, I089
(E. D. Mich., I87I); The Great Britain, IO Fed. Cas., no. 5736, 1050
(S. D. N. Y., I843); Berhaus v. The Georgeanna, 3I Fed. 405 (S. D. N. Y.,
I887), and Lowndes v. The Phoenix, 36 Fed. 272 (D. S. Car., i888). See
also Bradford v. Bradford, 3 Fed. Cas., no. 1766, II29 (Circ. Ct., W. D.

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the Civil War there was great general necessity of relief for
poor civil litigants. With plenty of elbow room, high average
wealth, and, on the whole, rather low court fees and costs, men
did not often need gratuitous legal assistance until the growth
of great cities brought " the infinite complexity of modern life,
of business, and of affairs in general which breeds litigation." 103
Thus, turning again to Massachusetts as a concrete instance, we
find her laws at the end of the eighteenth century wiping the
slate clean of all reference to in forma pauperis proceedings,
apparently because the legislators had no idea that these might
ever become particularly necessary or useful.104
EIence we have a stoppage in the history of our topic. When
a railroad train stops, it cannot be started again until inertia
is overcome. So here. England has had hard times enough
with continuous in forma pauperis practice; we are having a
worse time, and are performing on the whole much less credit-
ably, because it has been necessary to make a whole series of
fresh beginnings in the federal courts and the courts of the
eight and forty states. Many jurisdictions have not moved
forward at all; elsewhere, under violent pressure of necessity,
some new schemes have been hastily adopted or some old ones
used as stop-gaps; nowhere, or almost nowhere, in the United
States can one find a plan for facilitating poor persons' suits
which is comprehensive both in substantive and administrative
provisions.'05
Consider first the jurisdictions without provisions of even the
most primitive sort to help poor litigants. These are numerous
Tenn., i878); Ferguson v. Dent, I5 Fed. 771 (Circ. Ct., W. D. Tenn., I883); and
Thomas v. Thorwegan, 27 Fed. 400 (W. D. Tenn., i886).
103 R. H. SM1ITH, JUSTICE AND THE POOR, 7.
104 MASS. ACTS AND RESOLVES 1784, C. 28, ? 9; id. 1795, C. 41. As to the
effect of such statutes on a court's in formna pauperis powers, see Bradford v.
Southern Ry. Co., 195 U. S. 243, 25I-252 (I904).
105 Apparently no comprehensive account of the American situation exists.
My endeavor here has been to put each state into one of three or four general
classifications. No doubt there are some errors. One cannot get from any written
sources the full story of procedure in dozens of unfamiliar jurisdictions. And
indeed it is practically impossible to be sure of reaching all the written informa-
tion about a topic so unsystematically dealt with that its disjoined fragments
are indexed under actions, appeal and error, attorneys, constitutional law, costs,
divorce, equity, fees, forma pauperis, paupers, poor, public defender, and other
less obvious catch terms. The diverse indexing makes it particularly hard to
state with perfect confidence that a given jurisdiction has no in forma pauper
statutes or procedure. Hence the conclusions here offered are subject to correc-

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and include several densely populated states in which the

problem takes its most acute form. Before the recent establish-
ment of her small claims courts, Massachusetts belonged in this
class, and she still belongs so far as claims of more than thirty-
five dollars are concerned.'06 Several other New England
states have not taken this or any similar step.'07 With such a
situation in some of our oldest communities, it is no wonder that
throughout the country we find states, either separate or in
small groups, where civil proceedings in forma pauperis are
unknown.108 An apologist for this condition is hard put to it.
Chief Justice Rugg of Massachusetts perhaps made the best
possible defense when he said:
"Social conditions and the practice respecting costs and the bonds
required as security for appeals in this Commonwealth have made
inapplicable the rule in this regard which still prevails in England." 109
Even this leaves the reader cold. What if costs are low? There
will always be litigants the level of whose finances is lower.
The learned Chief Justice does not mention fees, which, in
Massachusetts at least, are on the whole lower than costs. Yet
it is definitely known that in Boston alone more than three
hundred and eighty-three persons were between April, I9I6, and
July, I922, prevented from bringing suits or actions because
tion, although three readers have checked them.
Throughout the discussion it must be borne in mind that almost universally
courts are given discretion as to the award of costs in equity. See references in
15 C. J. 32, n. 47. But this discretion seems to be disused by the courts of
many states (see, for instance, the reference in n. IO9, infra), and it may not
extend to remission of fees.
106 For small claims procedure, see MASS. G. L. C. 2I8, ?? 2I-25; on the
general question of costs and fees, MASS. G. L. CC. 26I, 262.
107 Connecticut, Maine, New Hampshire, cf. Leazar v. Cota, 43 N. H. 8i
(i86i), and Vermont.
108 Delaware, Florida, Idaho, Iowa, Maryland, Nebraska, Nevada, North
Dakota, Ohio, South Carolina, South Dakota, Washington, and Wyoming.
The same holds for Alabama and Wisconsin, with very slight exceptions. See
notes I26 and I2I, infra. Minnesota has an equally slight exception, I9I3 MINN.
GEN. ST. ?? 799I, 7992. Oregon really seems to belong to this list. The ex-
ception contained in I920, OREGON LAWS (Olson), ? 242I, is not impressive. So,
too, for Pennsylvania. See notes II3 and I92, infra. Nebraska provides the
public defender as an unpaid attorney in small cases, but goes not further. I922,
COMP. STAT., ?? IOI05, ioio6. Nevada has a very peculiar recent statute along
these lines. I92I NEv. ST. C. I38.
109 Forbes v. Thorpe, 209 Mass. 570, 578, 95 N. E. 955 (I9II). This case
deals only with an equity appeal. But the argument above quoted, appears to
have general application.

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they could not pay the small court fees.110 Then as to security
for costs. Although this is not required in Massachusetts from
resident plaintiffs, it is required from non-resident plaintiffs.111
Surely, too, a law is but feebly virtuous in allowing a litigant to
run up a bill of costs which he is notoriously unable to pay, and
for non-payment of which he may be arrested in some juris-
dictions.'12 This too much resembles the real or imaginary
floggings under the act of Henry VIII. Better far to give
reasonable exemptions in the first place. Of course nothing in
the foregoing quotation from Chief Justice Rugg at all touches
miscellaneous expenses or the vital matter of lawyers' fees.
Next we come to a few states which, despite a lack of statutes
on the subject, have held either that they inherited in forma
pauperis as part of the English common law 113 or that exemp-
tion of the poor from costs and fees, and probably their right to
free legal services also, are necessarily implied from constitu-
tional provisions guaranteeing unbought justice to all."'4 This
is something, but not nearly enough. The doctrine of adopted
common law is a feeble reed to lean upon. Any state legislature
may, more perhaps by accident than by design, abrogate the
common law with a statute categorically requiring costs and
fees. Worse still, this doctrine would necessarily saddle us with
an outworn English system already tried and found wanting.
XVith respect to the constitutional basis, it should be observed
110 The number stated in the text is that known to the Boston Legal Aid
Society. Of course there were other cases which never came to this Society's
knowledge.
111 MASS. G. L. c. 23I, ??42-48.
112 This is true in Massachusetts, MASS. G. L. c. 224, ?? 6, i6; arrest on
executions for costs only is easier than on other executions; the debtor may free
himself by submitting to an examination as to his means, but in the examination
he will be at a distinct disadvantage if he has no lawyer to guard him. See
MASS. G. L. c. 224, ?? 20, 30.
113 California: Martin v. Superior Court, 176 Cal. 289 (I9I7) ; see no
6 CAL. L. REV. 226 (igi8) and 3I HARV. L. REV. 485 (I9I8). California has
partial in forma pauperis provisions.
Pennsylvania: Willis v. Willis, 20 Pa. Dist. 720 (i9II). As a practical
matter, the legal aid workers find that these inferior court cases are little recog-
nized or followed. It has been argued with a great deal of force that Massa-
chusetts ought to join either these states or Rhode Island (see next note). 4
MASS. L. QUART. 323, 330.
114 Rhode Island: Spalding v. Bainbridge, I2 R. I. 244 (I879), and Lewis v.
Smith, 2I R. I. 324, 43 Atl. 542 (I899).

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that collision between constitutional provisions may rob poor

men of the lawyers' services which they must have to attain
justice. For in some jurisdictions at least a lawyer assigned
to act gratuitously can refuse the assignment and support his
refusal by appealing to the constitutional guaranties that taxa-
tion shall be equal and that no man shall be compelled to render
service or give up his property without just compensation.1"5
Such action by lawyers, and such decisions by courts, contrast
sadly with the noble tradition of the early Roman bar that
orators or advocates should serve without recompense, " looking
to fame and influence as their reward," 116 but they are facts
not to be disregarded. Another highly practical objection to
proceeding under constitutional provisions is that their general
terms leave the courts relatively powerless for lack of adminis-
trative machinery.
The remaining American jurisdictions present a hodge-podge
of statutory provisions. To begin with, there is much undesir-
able inconsistency about the persons to whom and the stages
of a case in which the exemptions apply. Quite often residents
are the only beneficiaries.117 Yet non-residents may need help
more, since they are commonly required to give security for
115 See Webb v. Baird, 6 Ind. I3, I5, I7 (I854), an opinion well calculated
to destroy every shred of an Indiana lawyer's pride in his profession. The ground
here emphasized is disproportionate taxation. The doctrine can be equally well
sustained by a provision forbidding the commandeering of a man's "particular
services . . . without just compensation." Blythe v. State, 4 Ind. 525 (i853).
Then, too, a very learned court has held that labor is property. Raymer v.
Trefry, 239 Mass. 4IO, I32 N. E. I90 (I92I). So provisions against taking prop-
erty without compensation also apply. For a collection of cases on both sides see
42 L. R. A. (N. S.) 527. The result is that attorneys assigned to defend in criminal
cases are often paid from the public treasury. But in civil cases assigned attorneys
have a harder time obtaining public remuneration and may therefore remain free
to decline the assignments. Board of Commissioners v. Pollard, I53 Ind. 37I, 55
N. E. 87 (I899).
116 2 ROBY, ROMAN PRIVATE LAW, 407; also 2 SHERMAN, ROMAN LA
MODERN WORLD, ? 906, P. 455.
117 Arizona: I9I3, REV. STAT., CIV. CODE, ? 645; Kansas: I9I5, GE
? 75IO; Kentucky: I922, CARROLL'S Ky. STAT. ? 884; Louisiana (c
locally domiciled aliens): I9I5, MARR'S ANN. REV. STAT. ? IOI2; Mich
3 COMP. LAWS, ? I24II; Mississippi (citizens): I9I7, HEMINGWAY'S AN
? 656; and Tennessee: I9I8, 5 ANN. CODE, ? 4928. States where the st
not positive and lack of decisions leaves the point doubtful are omit
this list.

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costs. The general federal statute helps only citizens.118 There

is a special statute for the benefit of all seamen, irrespective of
nationality."9 But surely we mean that other poor foreigners
shall have justice, and the federal courts are specially intended
for this purpose.'20 Many state laws are reminiscent of dis-
carded English practice. Several repeat the mistake of pro-
tecting plaintiffs only.12' One or two require a certificate of
counsel supporting the application, a restriction which became
almost a prohibition in England.'22 The tests or standards of
poverty are strikingly inconsistent: ten dollars, for instance in
Arkansas 123 and one hundred dollars in New York.124 More
often, there is no prescribed standard at all, and judges have
ponderously to determine when a man is " poor." 125 Some laws
cover appeals,126 some do not7l2T some leave the point in
118 Act of July 20, I892, C. 209, 27 STAT. AT L. 252. This statute as amen
in IgIo covers also cases in the District of Columbia. Hale v. Duckett, 4
App. 285 (09g5), and Neubeck v. Holmes, 44 D. C. App. 67 (09g5).
119 Act of July i, I9I6, c. 209, 39 STAT. AT L. 3I3.
120 U. S. REV. STAT., ? 563; JUD. CODE., ?? 24, 28; BARNES, FED. CODE, H? 785,
790.
121 Arizona: I9I3, REV. STAT., CIV. CODE, ? 645; Arkansas: CRAWFORD &
MOSES, I92I, DIG. STAT., ?? i85o-i855; Colorado: I9I2, MILLS ANN. STAT., ?? ii88,
2252; Illinois: I92I, SIVuTH's REV. STAT. C. 33, ?? 5, 6, c. 40, ? 15, but see c.
37, ? 4I6; Kansas: I915, GEN. STAT., ? 75I0; Michigan: I915, 3 ComP. LAWS
? I24II; Mississippi: I9I7, HEMINGWAY'S ANN. CODE ? 656; Montana: I92I, 3
REV. CODES, ? 9809 New Jersey: I9IO, COMIP. STAT., 4I22; New Mexico: I915,
ANN. STAT., ? 4292; Oklahoma: I92I, I COMP. STAT., ? 764; and Wisconsin
(partial relief only): I92I, STAT., ?? 3052 m, 3782. It should be noted that in
several of these states the relief consists only of remitting or postponing fees and
security for costs. This type of relief is less often needed by defendants.
122 Arkansas: I92I, CRAWFORD & MOSES, DIG. STAT., ? I85I. See Georgia:
I9I4 PARK'S ANN. CODE, ? 6I65 (for appellate purposes); also North Carolina:
I9I9, I CONSOL. STAT. N. CAR., ? 496.
123 CRAWFORD & MOSES, I92I, DIG. STAT., ? I85I.
124 I922, GILBERT CIV. PRAC. ANN., CIV. PRAC. ACT, ? I99.
125 For examples, see Wickelman v. A. B. Dick Co., 85 Fed. 85I (2nd Circ.,
i898); Volk v. B. F. Sturtevant Co., 99 Fed. 532 (ist Circ., i900); Woods v.
Bailey, 122 Fed. 967 (Circ. Ct., M. D. Pa., I903); Fils v. Iberia etc. Co.,
145 La. 544, 554, 82 So. 697 (i9i9); Hoey v. McCarthy, I24 Ind. 464, 24
N. E. I038 (I890), which seems a harsh case, although full of virtuous langua
126 Alabama: Pollard v. Jackson, 204 Ala. 3I, 85 So. 43I (I920), the provi-
sions of Alabama law being, however, narrow in scope; Georgia: I9I4, PARK
ANN. CODE, ??4742, 5010, 5191 (a), 5708, 6I65, 6260; Indiana: I914, BURN
STAT., ? 26I, and see Board of Commissioners v. Courtney, I05 Ind. 3II, 3I7,
N. E. 896 (I885), a criminal matter; Louisiana: 19I5, MARR'S ANN. REV. STATS.,

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doubt.'28 These, of course, are details, but we have seen that

they are highly important and should be settled uniformly and
on a liberal basis.
Now let us see what our statutes have done with regard to
fees, costs, and lawyers' services. Eighteen of the states with
legislation on the subject exempt poor litigants from payment of
court fees, either permanently or until success in the suit
furnishes money to pay.129 A somewhat larger number of states
ease the needy of costs.130 This is done by absolute exemption,
? IOI2; Missouri: I919, REV. STAT., ? I482 (cf. ? 289I); Montana: I92I, 3 REV.
CODES, ? 9809; North Carolina: see Speller v. Speller, II9 N. C. 356, 26 S. E. i6o
(I896); Tennessee: Scott v. Brandon, I25 Tenn. (I7 Cates) 3I4, I43 S. W. 6oi
(I9II); Texas: Pendley v. Berry & Towles, 95 Tex. 72, 65 S. W. 32 (I90I) and
I920, COMP. STAT., Arts. 2084 and 3634; and Utah: I9I7, COMP. LAWS, ? 2576,
and notes, also ? 2579. In several of these jurisdictions, however, the exemptions
on appeal are not so broad as in courts of first instance.
127 Colorado: Ferrara v. Auric Mining CO., 20 Colo. App. 4II, 79 Pac. 302
(I905); Mississippi: Woods v. Davidson, 57 Miss. 206 (I879); New York: I922,
GILBERT'S CIV. PRAC. ANN., CIV. PRAC. ACT, ? 558; JUSTICE COURT ACT, ? 43;
Virginia: Tyler v. Garrison, I20 Va. 697, 91 S. E. 749 (I9I7), but see I9I9,
CODE, ? 3486; West Virginia: CODE (Hogg, I9I3), ?? 5076, 5077 (these are similar
to Virginia code, and will presumably have like construction).
128 In this group are Arizona: I9I3, CIV. CODE, ? 645; Arkansas: I92I,
CRAWFORD & MOSES, DIG. STAT., ? I850, cf. ? 225I, and Kansas: I9I5, GEN.
STAT., ?? 7474 and 7510.
129 Arkansas: I92I, CRAWFORD & MOSES, DIG. STAT, ? I853; California
n. II3. supra); I9I5, CODE CIV. PRAC. (Deering), ? 9I; Colorado: I9I2, MILLS
ANN. STAT., ?? ii88, 2252; Illinois: I92I, SMITH'S ILL. REV. STAT., C. 33, ?? 5,
6, c. 40, ? I5; Indiana: I9I4, BURNS ANN. STAT., ? 26I; Kentucky: 1922, CAR-
ROLL'S STAT., ?? 884, 2272; Louisiana: I9I5, MARR'S ANN. REV. STAT., ? IOI2;
Mississippi: I9I7, HEMINGWAY'S ANN. CODE, ?? 656, 658; Missouri: I9I9, REV.
STAT., ?? i692, I693, 2755, also ? 2540; Montana: I92I, 3 REV. CODES, ? 9809;
New Jersey: -909, COMP. STAT., p. 4I22; New Mexico: I9I5, ANN. STAT., ? 4292;
New York: I922, GILBERT'S CIV. PRAC. ANN., CIV. PRAC. ACT, ? I493; JUSTICE
COURT ACT, ? 40; North Carolina: I9I9, I CONSOL. STAT. N. CAR., ? 1247; Texas:
I920, COMP. STAT., Art, 2052; Utah: I9I7, COMP. LAWS, ?? 2576 et seq.; Virginia:
I9I9, I ANN. CODE, ?H 35I7 et seq.; West Virginia: 3 Code (Hogg, I9I3), ? 5076;
and federal courts (see references in note I34, infra).
130 Arizona: I913, REV. STAT., CIV. CODE, ? 645; Colorado: 19I2, MILLS
ANN. STAT., ?? II88, 2252, Peck v. Farnham, 24 Colo. I4I, 49 Pac. 364 (I897);
but compare Colorado F. & I. Co. v. Menapace, i6 Colo. App. 200, 203, 64 Pac.
584 (i90i); Georgia: I9I4, PARK'S ANN. CODE, ? 50IO; Illinois: I92I, SMITH'S
ILL. REV. STAT. C. 33, ? 5; C. 37, ? 4I6; C. 40, ? ij, Indiana: I9I4, BURNS ANN.
STAT., ? 26I (notes); Kansas: I9I5, GEN. STAT., ? 75I0; Kentucky: 1922, CAR-
ROLL'S STAT., ? 884; Louisiana: I9I5, MARR'S ANN. STAT., ? 10I2; Michi-
gan: I9I5, COMP. LAWS, ? I241I; Mississippi: I917, HEMINGWAY'S ANN. CODE,
?? 656, 658, 659; Missouri: I9I9, REV. STAT., ? 2755, indicates that at least no

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or by waiving the usual requirement of security, or by leaving

the matter of costs to the court's discretion. In sixteen states
and in the federal courts the litigant is thus benefited as to
both fees and costs;13 in two states as to fees alone;"13 in seven
states as to costs alone.133 It is worth noting that some slight
moves are made toward lifting what I have called miscellaneous
expenses of litigation. The federal statute exempts poor appel-
lants from advance payment for printing records;134 Louisiana
provides for free stenography.135
A dozen of the states under discussion give their courts power
to assign lawyers to needy suitors.3" The federal courts also
have this power.137 In Nebraska the public defender takes in
hand for the needy those cases involving sums of one hundred
dollars or less.138 Elsewhere the provisions are vague, simply
allowing assignment from the ranks of the bar in general. Here
security is demanded; Montana: I92I, 3 REV. CODES, ? 9809; New Jersey:
1909, COMP. STAT., P. 4I22; New Mexico: I9I5, ANN. STAT., ? 4292; New York:
see references in note I29, supra; North Carolina: I9I9, I CONSOL. STAT. N.
CAR., ? 494; Oklahoma: I92I, I COMP. STAT., ? 764; Tennessee: I9I8,
5 ANN. CODE, ?? 4928 et seq. (cost deferred, see ? 4933); Texas: I920, CO
STAT., Art. 2052; Utah: I917, CoAip. LAWS, ? 2579; Virginia: igig, I ANN.
CODE, ? 3517; West Virgina: I9I3, 3 CODE (Hogg) ? 5076; Wisconsin: I92T,
2 STAT., ?? 3052 m, 3782; and federal courts (see references in note I34, i fra).
131 The states are: Colorado, Illinois, Indiana, Kentucky, Louisiana, Missis-
sippi, Missouri, Montana, New Jersey, New Mexico, New York, North Carolina,
Texas, Utah, Virginia, WVest Virginia.
132 Arkansas and California.
133 Arizona, Georgia, Kansas, Michigan, Oklahoma, Tennessee (it may be,
however, that the Oklahoma and Tennessee acts use the term "costs" to cover
fees as well; if so, these states should be in the note I3I list), and Wisconsin.
See n. io8, supra, for a few additions which might possibly be made to this
note or the two preceding notes.
134 Act of July 20, I892, C. 209, 27 STAT. AT L. 252, as amended by Act of Ju
25, I910, C. 435, 36 STAT. AT L. 866; BARNES, FED. CODE, ? I367. See also Virgin
I919, CODE, ? 3486.
135 19I5, MARR'S ANN. REV. STAT., ? IOI2. See also Arkansas: I921, CRAW-
FORD & MOSES, DIG. STAT., ?? 2250, 3282.
136 Arkansas: I92I, CRAWFORD & MOSES, DIG. STAT., ?? i85o, 1852; Illinois:
192I, SMITH's ILL. REV. STAT., c. 33, ? 5; Indiana: I9I4, BURNS ANN. STAT.,
? 26I; Kentucky: I922, CARROLL'S STAT., ? 88A; Missouri: igig, REV. STAT.,
? I692; Nebraska: I922, COMTP. STAT., ?? I0105, ioio6; New Jersey: I909,
COMP. STAT., P. 4I22; New York: I922, GILBERT'S CIV. PRAC. ANN. CIV. PRAC.
ACT., ?? i96, i98, and N. Y. MUN. COURT CODE, ? 28; North Carolina: igig, i
CONSOL. STAT. N. CAR., ? 494; Texas: I920, COMP. STAT., Art. I7I6; Virginia:
I919, I ANN. CODE, ?? 35I7, 35I8; West Virginia: I9I3, 3 CODE (Hogg), ? 5076.
137 See references in note I34, supra.
138 See reference in note I36, supra; cf. last reference in n. io8, supra.

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again we touch a vital point. The remedy is inadequate. For

some reason or other the power of assignment is now little
used. It is cramped by constitutional difficulties. It does not
bring out able counsel for poor men. Yet in essence it is good,
and under sound administration it has real possibilities. Stat-
utes and rules can provide for proper choice of lawyers,
particularly by forming an official instead of a merely casual
connection between courts and legal aid workers. Of this, more
in a later section. What we must recognize, however, is that
the present American system of assignment is more a will o'
the wisp than a true beacon of hope for the indigent.
Take another administrative matter: the winnowing out of
sound claims from uinsound ones. If this is not done at all,
the courts will be clogged. If the test is made too strict, the
poor are likely to lose most of the benefits which the legislature
meant them to have. English experience is eloquent on both
these points. And in America there is evidence that poor
persons' procedure has been badly abused where proper initial
scrutiny of cases was lacking.139 But here the existing Ameri-
can statutes hardly scratch the surface. They usually leave
the judges themselves to make any preliminary inquiries, which
means either that the inquiries are superficial or that the court
is burdened with a duty stealing much time from true judicial
work.140 Particularly in such administrative aspects the best of
our procedures will hardly bear comparison with those of foreign
countries.
The neglect to provide help for needy litigants and the hap-
hazard nature of such help as has been given are striking features
of the American situation. Neglect is shown most strongly by
the twenty-odd states with no in forma pauperis practice; in a
lesser degree by three or four states depending wholly or partly
139 In Bradford v. Southern Railway Co., I95 U. S. 243, 247 (I904), counsel
asserted " that the courts are crowded with damage suits of every imaginable
description against railroads and other corporations and that more than go per
cent of these cases are brought on the pauper's oath." See The Vandercook,
77 Fed. 865, 868 (S. D. N. Y., i897). Surely the Supreme Court should
never have had to hear Kinney v. Plymouth Rock Squab Co., 236 U. S. 43
(I9I5), the tangled history of which is recounted on pp. 46-49.
140 See note I25, supra, for cases in which courts were forced to do work
without any bearing whatever on the merits of the causes.

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upon the general wording of constitutional provisions or sketchy

adaptations of English procedure. Haphazard conditions are
sufficiently shown in the immediately preceding paragraphs.
But for a particularly striking example of hit-or-miss legislation
we can turn to Congress. In I892 the main federal statute
covering poor men's suits was enacted. For some years there
was controversy in the inferior United States Courts as to
whether this act extended to appellate proceedings.141 The
Supreme Court ultimately decided that it did not.142 The defect
was removed in I9IO by amendment.143 In I9I6 Congress
passed the act for the benefit of poor seamen which has already
been referred to.'44 Despite experience with the law of I892,
the seamen's act did not cover appeals. Only when the Supreme
Court had settled this point was proper amendment made145
Under each of these statutes, then, individuals were needlessly
sacrificed upon the altar of legal progress. Sometimes, even
when statutes are poorly drawn or entirely lacking, brilliant
advocacy or particularly vigorous court action has prevented
such sacrifices"46 The poor never have been and never will be
without sympathy and help from individual judges and members
of the bar. But it is hard to discern in any of our existing
laws even the foundations of a comprehensive and effective
plan for bringing justice within the reach of all. We do find
such a plan actually developing and operating in England.
Although still imperfect, it seems fundamentally sound, and is
being brought nearer practical perfection by intelligent amend-
ments. We should lose little and gain much if we stripped
away most of our present fragmentary in forma pauperis law
and set sail under new statutes cut on the pattern of the
English rules.
141 Fuller v. Montague, 53, Fed. 206 (Circ. Ct., S. D. Tenn., i892); The
Presto, 93, Fed. 522 (5th Circ., I899); Reed v. Pennsylvania Co., iii Fed.
7I4 (6th Circ., I90I).
142 Gallaway v. Fort Worth Bank, i86 U. S. 177 (I902); Bradford v. So
Railway Co., I95 U. S. 243 (1904).
143 Act of June 25, I91O, C. 435, 36 STAT. AT L. 866.
144 See note iip, supra.
145 Ex parte Abdu, 247 U. S. 27 (I9I8); Act of July I, I9I8, C. II3, 40 STAT.
AT L. 683.
146 Perhaps the most striking example is Martin v. Superior Court, 176 Cal.
289, I68 Pac. I35 (I9I7).

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POVERTY AND CIVIL LITIGATION 39I
THE NEW ENGLISH RULES
The English rules regulating poor persons' proceedings, as

promulgated by the High Court of Judicature in I9I4 and as
subsequently amended in the light of experience, present five
specific outstanding features. I shall follow up a statement of
these features with some brief general comments.147
a. The Clearing House for Poor Men's Causes.
The rules have established a Poor Persons' Department in

the Royal Courts of Justice at London, with branches in the
District Registries.'48 These offices are the administration
centres. To them applications for relief are made, and by them
investigations, assignments of lawyers, money payments from
client to solicitor, and other administrative details are con-
trolled. Thus poor people are not left in doubt, like the
" London Lackpeny," as to where they shall seek relief. Acces-
sible and well-known clearing houses are essential to the success
of this or any similar remedial system.
b. The Assignment of Lawyers.
History has shown that an in forma pauperis system most

quickly breaks down at the point where it tries to secure for
the poor litigant the services of a lawyer who, by hypothesis,
cannot expect to be adequately compensated for his time and
effort. The provision of attorneys' services is a condition
147 For much of the material hereafter presented I am indebted to the

courtesy of Adrian H. Hassard-Short, Esq., Secretary to the London Prescribed
Officers (Poor Persons). But while Mr. Hassard-Short has kindly told me th
facts, he is not to be held responsible for errors in my deductions. To thos
who wish something of Mr. Hassard-Short's own point of view, I recommend
his little book entitled, THE PRACTICE IN "POOR PERSONS" CASES (Stevens &
Haynes, London, I9I6), hereinafter referred to simply as HASSARD-SHORT
There have, to be sure, been amendments of the rules since I9I6, but the book
is very helpful.
148 STATUTORY RULES AND ORDERS (hereafter referred to as S. R. & 0.), [I920]
vol. 2, No. , Order XVI, part IV, p. 7I2.

L.6o

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precedent to success, but to make this provision in practice

is a perplexing and inherently difficult problem.
Theoretically, the power of a court to act on its own initia-
tive and call upon any member of the bar, plus the lawyer's
ethical and professional obligation to respond, would seem to
afford a complete solution. Practically, except in small com-
munities and in rare cases elsewhere, it is no answer at all.
When the need is to secure lawyers for hundreds and thou-
sands of indigent suitors the court faces a task it is ill-equipped
to perform. Hit-or-miss assignments, made without regard to
the ability or willingness of the particular lawyer to serve, are
not satisfactory to anybody. A routine plan of rotating assign-
ments, as by following the alphabetical order of attorneys'
names, is hardly better; it is arbitrary and unintelligent.
To begin with, the English plan lifts the burden of making
assignments off the court and entrusts the responsibility to the
Poor Persons' Department with its headquarters in London and
its branches in every District.'49 But it seeks to avoid the
inherent evils of a compulsory assignment system. It recognizes
the fact that the average lawyer works just as hard for his
living as the next man. He simply cannot afford to have a
large burden of charity work arbitrarily thrust upon him. If
it is thrust upon him he faces the dilemma of neglecting those
clients from whom he earns his living or of neglecting his
assigned cases. A lawyer owes a duty to his profession, but he
also owes a duty to his wife and children. Any plan of doing
justice to the poor by doing injustice to the bar will soon collapse.
So the present assignments in England are voluntary from first
to last. The Poor Persons' Department at London has built
up for its use and the use of the District Registries two lists
of lawyers. The first list contains the names of barristers and
solicitors who have volunteered to inquire into and report upon
applications for admission to sue as poor persons; the second
contains the names of those who have volunteered to conduct
the cases of poor persons whose applications have been favor-
ably passed upon.150 But whether or not a lawyer has put his
name down on the lists, the Department may intrust to him the
investigation or the conduct of a case; conversely, even if he
149 Op. cit. rule 28, p. 7I4. 150 Op cit. rule 24, p. 7I3.

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has his name on either list or both, he may decline any particular
assignment offered him.151
The Poor Persons' Department has had difficulty in maintain-
ing large enough lists. The war of course complicated the
situation. But since the war, legal publications have carried
several appeals for volunteers.152 Time and custom may correct
this difficulty, or the difficulty may grow and prove the task
too great to be coped with by even the best regulated voluntary
assignments. The doubt here implied is not predicated on any
pessimistic view of the legal profession's generosity but on the
multitude of people who may need to be served.
c. Investigations of and Reports on Applications.
Under the English system, when an applicant fills out and

files the prescribed printed form, an investigation follows cover-
ing (i) the applicant's financial status and (2) the practical
merits of his claim.153 At first these investigations were not
invariably models of thoroughness. A single solicitor assumed,
for instance, to inquire into and report upon 523 cases in a
single year!154 But amendment of the rules has fixed clearer
standards of care.155 Unquestionably the investigations do pro-
tect the courts. Out of more than 28,000 applications received
down to the end of October, I922, over half were refused.156
151 Op. cit. rule 28, P. 7I4; also HASSARD-SHORT, 8 and io. Once a lawye
takes hold, he may not drop a case without cause. [I920] 2 S. R. & O., No. 232
L.6o
Order XVI, part IV, rule 3I B (3), p. 7I5.
152 The following notices appear: 49 L. J. 303 (I9I4); 50 L. J. I57, I62
(I9I5) 55 L. J. 435 (I920); I50 L. T. 338, 349 (I920). 56 L. J. I47 (I92I).
Compare I5I L. T. 430 (I92I). When I saw Mr. Hassard-Short in September,
I922, he expressed only qualified satisfaction with the state of his lists.
153 rI9201 2 S. R. & O., NoJ. 2325 Order XVI, part IV, rule 26, p. 7I3, as
amended by [I92I] S. R. & O., No. 558

L.I2
154 54 L. J. 474 (I9I9).
155 Compare the old rule in HASSARD-SHORT, 4-5, with revised form referred
to in note the I53, supra. And see 54 L. J. 48I (I9I9).
156 See the tabulation on p. 398 and note I82, infra. It will be noticed that
only in the divorce court has relief been granted to as many as half the ap-
plicants.

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It has been authoritatively stated tha

progressively improved.157
This matter of preliminary scrutiny is most important. It
may span the gap between failure and success. As conducted
in England, it means that normally nothing except the actual
trial of approved cases comes before a judge. Under the rules
" the Court or Judge " must pass on each report, but the practice
is to have a Master or Registrar represent the court for this
purpose.158 It seems scarcely necessary to emphasize the wis-
dom of letting judges give their time as completely as possible
to strictly judicial work.
While the method of inquiry by assigned volunteer counsel
has proved workable, certain English critics argue that specialists
could conduct the investigations with greater speed and efficiency
and a saving of much valuable time to the volunteers.159 Cer-
tainly such experts as the legal aid attorneys of the United
States would excel ordinary practitioners if used for this
purpose.
Obviously the rules had to lay down a standard of poverty.
The one prescribed is conveniently definite, but not unreason-
able or Procrustean, like the old five pound limit. An applicant
is "poor" if (i) not worth more than fifty pounds (certain
property excluded) and (2) not in receipt of a usual income
exceeding two pounds a week. Under special circumstances a
judge may increase either of or both these maxima, the first
not beyond one hundred pounds and the second not beyond four
pounds.160 It would seem possibly a trifle wiser to put no top
limit on the judge's discretion, at least in America, where the
tendency is to make this kind of regulation by statute and not
by court rule which may easily be changed.
157 "Many well-known claimants, who have hitherto given much trouble in
the Court offices, have been disposed of, and the character of the cases now coming
in seems to be steadily improving." 5I L. J. I45, I46 (I9I6); HASSARD-SHORT, V.
158 HASSARD-SHORT, 7.
159 H. Greenwood Wrigley, 5I L. J. 570 (igi6); see id. 562, 522-523.
160 [I92I] S. R. & O., No. j558, Order XVI, part IV, rule 22.

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d. Conduct of Cases.
After an application has been approved, the English adminis-

trative officers assign to the applicant a solicitor and counsel
willing to act in the conduct of his case.161 Here there has been
some complaint of inefficient service by assigned lawyers.162
Plainly the solicitor who in a single year accepted 40I cases for
conduct could not become very familiar with the troubles of
each poor client.163 Nowadays this sort of thing is not likely to
happen, and each conducting solicitor must report annually on
every case which he accepts.164
The applicant admitted to the English courts as a poor person
is of course freed from personal responsibility for fees, and as
a general rule from liability for costs.165 In addition he need
not dig into his pocket to meet lawyers' charges. But suppose
he is a successful plaintiff and comes out of the litigation with
more than he had at the start. How about fees and the lawyers
then? There appears to be no liability for fees. The poor
man's solicitor may have certain limited compensation on court
order, but his barrister is entitled to no compensation.166 This
latter rule seems somewhat harsh, unless it is based upon the
very exacting traditions of the English bar.167 The world of
clients is not divided into persons who can pay in full and
persons who can pay nothing. There is a large intermediate
class of persons who can pay something and who should do so,
particularly when the outcome of the case is a substantial money
recovery. It is obviously wise to award any such fees under
161 [I920] 2 S. R. & O., No. 2325, Order XVI, part IV, rule 28, P. 7I4;
L.6o
HASSARD-SHORT, 6-9.
162 A considerable amount of which complaint is ascribed to what Judge
Parry jovially calls the trades union attitude of the divorce specialists. TIHE
LAW AND THE POOR, I44; 50 L. J. 88 (I9I5), 52 id. 347 (I9I7), 53 id. 67 (igi8).
163 54 L. J. 474 (19I9).
164 [I9201 2 S. R, & 0., No. 2325, Order XVI, part IV, rule 3I C. D., P. 7I5.
*L.6o
165 Op. cit. rule 3I E, P. 7I5-
166 Op. cit. rules 3I E, H, PP. 715, 7I6; HASSARD-SHORT, I2.
167 Judge Parry puts this tradition inimitably in THE LAW AND THE POOR,
I78.

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court supervision (following the analogy of the control over fees

exercised by our industrial accident commissions) in order to
preclude any overreaching or suspicion of overreaching.
e. Discretionary Characteristics of the Rules.
The English now very properly recognize that in a scheme

of this kind simplicity and flexibility are prime essentials. The
best rules are broad ones allowing reasonable exercise of dis-
cretion by the administrative and judicial officers concerned.
The only provision which might be deemed rigid is the one laying
down the standards of poverty, and even this seems a broad
enough rule of thumb. No limitation of nationality or domi-
cil is imposed to narrow the class of those who may apply for
admission as poor persons; application may be made at any
time;168 the order thereon is discretionary,169 may be revoked,170
and gives no basis for an appeal without leave;171 leave of court
is also required for carrying the merits of a case to the Court
of Appeal.172 Thus, while poor persons may have most liberal
treatment, they must prove that they deserve it. This seems
to be the correct principle. Every plan of this character must
depend for success upon the sympathetic firmness of those who
manipulate it.
f. General Comments.
An admitted weakness of the new English system is the lack

of a fund from which advances may be made for meeting in
the first instance the miscellaneous expenses of litigation.173
This is a serious matter, for it would not be reasonable, and
might not be ethical, to expect the most charitably inclined
solicitor to advance his poor client's cash out of pocket on the
gambling chance of success in litigation. Matrimonial causes
bring out the point emphatically. In them, the applicant must
168 See HASSARD-SHORT, I3, I9, and the English rules passim.
169 HASSARD-SHORT, 7.
170 [I920] 2 S. R. & 0., No.

L.6o
325 Order XVI, part IV, rule 3I, P. 7I5.
171 Op. cit. rule 3I A, P. 7I5.
172 Op. cit. rule 3I J, P. 7I7.
173 49 L. J. 335, 362, (9I4) ; 52 id. 43 (I9I7); 53 id. 73 (i9i8); 55 L. J. 295
(I920); Cf. PARRY, THE LAW AND THE POOR, I47, describing the French system.

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make an advance deposit of five or fifteen pounds (depending

on the nature of the case) and must add further sums if the
original deposit proves inadequate.174 Only too often such
further sums become necessary, as America and the British
Colonies are favorite resorts of matrimonial offenders. Service
in these distant places costs from five to ten pounds, and obtain-
ing evidence from twenty to twenty-five pounds.175
When the rules were first put in operation, it was with full
expectation that a fund to assist poor litigants would be pro-
vided. Ingenious suggestions were made as to the sources
from which it might be drawn - as, for example, treasure trove,
escheats, and unclaimed funds in the Supreme Court.176 But
the unprecedented expense of the great war put this problem
temporarily beyond hope of solution. Clauses referring to the
fund remained in the rules for some years as melancholy monu-
ments to what might have been.177 These clauses have now
been stricken out.
Another apparent defect of the English rules is that they
stop short at the threshold of the County Courts. As the
Attorney-General explained eight or nine years ago when answer-
ing a question in the House of Commons, it is difficult to dif-
ferentiate between County Court litigants in the matter of
poverty.178 Surely, though, a summary system of investigation
could be devised and arrangements made to care for that deeply
submerged fraction of the population whose poverty closes even
these inexpensive tribunals to them. As things stand now, it
is hard indeed for a really poor man to prosecute a small per-
sonal injury claim. If he starts in the High Court and gets a
poor person's order there, his case is likely to be remitted to
the County Court, where he loses this advantage.179 And so in
174 [I920] 2 S. R. & O., No. 315, Order XVI, part IV, rule 23, P. 7I3.
175 HASSARD-SHORT, I3. Probably these I9I6 estimates should now be revised
upward.
176 49 L. J. i6 (I9I4); 52 id. 95 (I9I7)-
177 HASSARD-SHORT, II, I2, 22.
178 HASSARD-SHORT, 22. See 49 L. J. 443 (I9I4) for a strong expression of
opinion by a County Court judge.
179 I4I L. T. I90 (I9I6); Perry v. London General Omnibus Co., [I9I61]
2 K. B. 335.

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the United States, it is submitted that even small claims courts

should have in forma pauperis rules and powers.
Thus far, the English rules have given principal proof of their
utility by relieving a divorce situation which was in its way as
shocking as the divorce conditions of even our most notorious
States.180 Since so many divorce suits are handled under the
rules, and so few cases of other types, some critics feel that the
plan must be working imperfectly and ought to have further
revision."8'
The records for England and Wales from I914 to I921
inclusive follow :182
Number of Relief Per Cent.
Applications Granted Relief
Granted
Court of Appeal II3 24 2 I%

Chancery Division .1...... I,3I9 I55 I 2%
King's Bench Division .... 2,436 549 23%
Probate, Divorce and Ad-
miralty Division ...... 22,967 I2,223 53%
Although the number of applications in the Divorce Division

seems disproportionate it must be remembered that prior to
I9I4 divorce was, to all intents and purposes, flatly denied to
the poor. Hence the present flood may be nothing more than
a natural accumulation of cases in which (as the high percent-
age of matters where relief was granted would indicate) long
overdue justice is now being done.
SUGGESTIONS FOR THE UNITED STATES
With both historical and contemporary experience to guide

us, we in the United States ought to be able to do infinitely
180 See E. S. P. HAYNES, DIVORCE PROBLEMS OF TODAY (Divorce Law Reform
Union, I9I2). Entirely aside from the unsatisfactory state of English substan-
tive divorce law, it was until I922 impossible, or at least impracticable, to try
an English divorce case except at London. Op. cit. 5I et seq. The extraordinary
restriction has now been removed. See DRAFT RULES I922, SUPREME COURT,
Order XXXVI A.
181 55 L. J. 342 (I92o).
182 Mr. Hassard-Short has sent me partial figures for I922, which sh
down to October 30, I922, about 900 applications had been granted and
refused.

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better than we have done thus far in making our civil courts
accessible to all persons irrespective of poverty. After clearing
the ground by repealing the patchwork statutes now on their
books, the legislatures in the several states should be asked to
enact comprehensive laws laying down the broad controlling
principles for an in formia pauperis system and conferring on
the courts adequate power to regulate the procedure through
rules.
Our states vary so much in size and in the structure of their
court organization that no one model act would be suitable to
all the different jurisdictions. While uniformity as to the under-
lying principles is eminently to be desired, there will inevitably
be various modes of application. All that can be done here is
to point out what features are essential if the relief is to be
effective:
I. Broad legislative standards, under which the courts may

make more detailed rules, must define who is entitled to relief
as a poor person.
2. Definite forms for applications by poor persons should
end the fruitless haggling over this initial step.'83 It is much
wiser to let the courts regulate these forms instead of crystal-
lizing them by statute.
3. A definite method of investigation must be provided to
determine (a) whether the applicant is a poor person as defined,
and (b) whether his complaint or defense seems of sufficient
merit and validity to entitle him to this special help. This
investigation should be conducted by, or under the supervision
of, an administrative department, or auxiliary agency of the
court.
4. In approved cases, applicants should not become liable
to furnish security for or pay costs unless improvement of their
183 The reader who desires to see how much time has been wasted over the
technicalities of application should glance at 2 CENT. DIG., Appeal and Error,
? 2074; I DECENNiAL DIG. (both I897-I906 and I907-I9I6), Appeal and Error,
? 389 (2) (3); I3 CENT. DIG., Costs, ? 5I0; 5 DECENNIAL DIG. (I8(7-I9o6),
Costs, ? I32 (4). These crowded columns are peppered with New York and
Texas cases; in the first reference given, Georgia has a good representation, as
might be expected from her meticulous requirements. I9I4, PARK's ANN. CODE,
?? 6I66, 623I, 6232, and notes.

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financial circumstances removes them from the class of "poor

persons." 18
5. In approved cases, fees which the state charges in cash
or taxes during the progress of the litigation (entry fees, trial
fees, jury fees, etc.) should be remitted or waived, subject to
complete or partial reinstatement if the ultimate situation
warrants. This includes fees payable to such ministerial
officers as sheriffs. Where such an officer is salaried and hi
fees go to the county treasury, this presents no difficulty. Wh
the officer is dependent on his fees, the county must reimburs
him unless the court, at the termination of the case, can proper
charge and collect this item. Experience in New York with
the city marshals who collect executions proves that if the officer
is obliged to work for nothing or to gamble on a recovery, his
service will be unsatisfactory.185
6. In those cases and in those courts where the services of
counsel are necessary, provision must be made to secure lawyers
for the litigants."8' Determination as to the need for an attorney
should be made part of the preliminary investigator's report.
7. Some reasonable provision should prevent duly qualified
litigants from having their progress blocked by inability to pay
witness fees, and, in rare cases, stenographers' and printers'
bills.
8. The statute should cover all stages of all civil proceed-
ings in all civil courts, and should provide specifically for pro-
184 The English practice under the act of I495, while rigidly cruel in many
respects, seems at times to have been rigidly kind about dispaupering on account
of financial good fortune. Ancell v. Sloman, 8 Mod. 344 (I725).
185 45TH ANN REP. N. Y. LEG. AiD Soc. (I920), 39-42; 44 id. (I9I9), 29.
18B Otherwise applicants will be driven into contingent fee agreements, and
such agreements sometimes act as prohibitions to in forma pauperis proceedings.
Boyle v. Great Northern R. Co., 63 Fed. 539 (Circ. Ct., D. Wash., 1894);
Feil v. Wabash R. Co., IIg Fed. 490 (Circ. Ct., E. D. Mo., I902). Phillips
v. Louisville & N. R. Co., I53 Fed. 795 (Circ. Ct., N. D. Ala., i907); Esquibel
v. A. T. & S. F. Ry. Co., 206 Fed. 863 (D. N. Mex., 1913); and Cahill v.
Manhattan Ry. Co., 38 App. Div. 3I4, 57 N. Y. Supp. IO (I899). The Oriental et
al. v. Barclay, i6 Tex. Civ. App. I93, 206, 41 S. W. II7 (i897); Loftin v. Frost-
Johnson Lumber Co., I33 La. 644, 63 SO. 252 (I9I3); and State ex rel. Malouf
,v. Merrill, i65 Wis. I38, i6i N. W. 375 (19I7), contra. But pressure on the bar
or legal aid organizations should be relieved by establishing small claims courts.
Between January I, I92I, and June 30, I922, the Boston Legal Aid Society has
been able to send nearly 300 applicants to fend for themselves in the Massachusetts
small claims sessions. 2I REP. BOSTON LEGAL Am Soc. I6.

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POVERTY AND CIVIL LITIGATION 40I
ceedings by representative parties such as next friends, guard-

ians, administrators, and trustees.187
This program is not so formidable as it sounds. Within the
past decade we have been attacking the evil effects of poverty
in civil litigation, and through modern municipal courts, small
claims courts, conciliation tribunals, domestic relations courts,
and industrial accident commissions we have enormously reduced
the number of persons who would be obliged to-apply for relief
in forma pauperis. This reduction can be carried much further,
but there is now and always will be a definite class of persons
and cases for whom this relief is the only possible door to
justice.
The large experience of legal aid organizations in this field
affords a basis 188 for a conjecture which gives reasonable
assurance that a proper procedure in forma pauperis would n
throw an intolerable burden on the administration of justice.
For each ioo of population there are, on the average, about
two persons who could qualify as "poor persons " and who
would have any litigation in a given year. In a city of half a
million inhabitants that would mean io,ooo possible applicants
for relief. In a jurisdiction equipped with the modern court
machinery and organization referred to by the preceding para-
graph, the number would at once be reduced by at least 5,000.
The preliminary investigation would further reduce the applica-
tions to 3,000 or 4,ooo approved cases, and the matters requiring
attorney's services would again be substantially fewer.189
Double this estimate, and even so the task is easily within
the power of organized society.
The great problem in England has been to secure the neces-
sary lawyers' services. In the United States an efficient, inex-
pensive, and satisfactory method of meeting this difficulty has
been known for years. Our thirty or more legal aid organiza-
187 Otherwise the representative party may be required to show himself a

"'poor person," too, or may be entirely denied access to the court in forma
pauperis. There are many cases, but it is better to make them obsolete by clearly
worded statutes than to spend time studying them.
188 R. H. SMITH, JUSTICE AND THE POOR, I89-I90.
189 See 43 REP. N. Y. STATE BAR ASSN., 446, 448, 452 (I920), where, under
what is described as a liberal practice, the Municipal Courts of New York are
authoritatively said to have handled 4665 in forma pauperis cases in a year.

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tions in all our larger cities, if encouraged

themselves, could, in cooperation with the assigned counsel
system in smaller communities, provide a complete solution.
It is not generally recognized how nearly equipped we are to
put such a plan into operation. The American Bar Association,
having provided its own standing Committee on Legal Aid
Work, has called on all state and local bar associations to do
likewise.'90 When this is accomplished there will exist a defi-
nite chain of bar committees through whom, in the smaller cities
and towns, the assignments of cases may be made. In the
larger cities, where the chief burden will fall, are the steadily
growing legal aid societies and bureaus.
These legal aid organizations, if linked up in some co6pera-
tive way with the administration of justice, could make the
preliminary investigations and, so far as applications were
approved, conduct the actual proceedings. Through their
corps of attorneys, numbering nearly two hundred, they are
now performing these very functions. No legal aid organiza-
tion will accept a case unless (a) the applicant is a poor person
and (b) his case is meritorious. They have developed, and are
perfecting, a technique for this investigation.
The Philadelphia Legal Aid Bureau, supported by the city,
affords a concrete illustration. In I92I it received I3,404
applications. Of these I,863 were rejected after the prelimi
nary investigation, and 754 cases were dropped because th
matters were without merit or not cognizable by law.'9' It
requires no stretch of the imagination to see how easily such an
organization could be utilized for all in forma pauperis proceed-
ings within its jurisdiction.
The operations of this Bureau also point another moral.
As Pennsylvania has no in forma pauperis statute 192 the Bureau
must now pay court charges. The Philadelphia Municipal
Court fees (exclusive of jury fees), for example, are $6.oo.
We have, therefore, the spectacle of one public institution,
190 47 AM. BAR ASSN. REPORTS, 96 (I922).

191 REP. LEG. AID COMMITTEE OF THE LAW ASSN. OF PHILADELPHIA, sub-
mitted June 6, I922.
192 There is in theory a common law practice. See note II3, supra. But it
is dusty from disuse.

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supported by taxpayers, paying its money to another public

institution, also supported by taxpayers. In such a situation,
a statute waiving fees for the sake of indigent suitors is not a
burden on the state. It is simple common sense. Instances
like this make one marvel at the fact that in America we have
done so much to solve the inherently difficult part of the problem
and yet have bungled so badly the much easier part.
The suggestion that the state or county treasury should
financially assist poor persons to summon their witnesses and
meet other cash expenses of litigation may not be feasible at
this time. Although the legal aid experience indicates that only
a small revolving fund would be required, yet the underlying
conception of direct state aid in civil cases involves a step which
many state legislatures would refuse to take. It is possible
that such action might be held an unconstitutional devotion of
public funds to private uses. This difficulty can be surmounted
only when public opinion reaches the conclusion that the state,
in carrying out its supreme task of securing justice to its citizens,
must do whatever is needful to guarantee equality before the
law.
Toward this conclusion the public conscience slowly moves.
In criminal cases the evil caused by allowing poverty to disturb
the equilibrium of the scales of justice is so dramatic, so readily
understandable by the average man, that already we find laws
providing indigent accused persons with counsel, paid out of
the county treasury, and with funds for summoning witnesses
and conducting their defense. Yet only a hundred years ago
poor men, though acquitted, were kept in English jails for years
because they could not pay the gaoler's fees and the county
would not bear the expense.'93
The Chief Justice of the United States, speaking at the
rededication of the original Supreme Court building in Philadel-
phia on May 2, I922, said: "Much remains to be done in
cheapening litigation in the Federal Courts by reducing costs or
transferring them to the public treasury." 194 Much remains to
be done in the state courts as well. Consideration and criticism
193 G. M. TREVELYAN, BRITISH HISTORY IN THE NINETEENTH CENTURY, 32.

194 8 JOUR. AM. BAR ASSN. 335.

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of the in forma pauperis plan should begin in the bar associa-

tions. There has heretofore been a lack of material on which
a helpful discussion could be based, but the matter is now ripe
for hearing.
John MacArthur Maguire.
BOSTON, MASSACHUSETTS.

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Poverty and Civil Litigation Author (S) : John Macarthur Maguire Source: Harvard Law Review, Feb., 1923, Vol. 36, No. 4 (Feb., 1923), Pp. 361-404 Published By: The Harvard Law Review Association

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Poverty and Civil Litigation Author (S) : John Macarthur Maguire Source: Harvard Law Review, Feb., 1923, Vol. 36, No. 4 (Feb., 1923), Pp. 361-404 Published By: The Harvard Law Review Association

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Poverty and Civil Litigation

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