The Question of Legal Aid in the Mid-nineteenth Century

Concern about access to justice for the poor has a long history in France.^[698] The revolutionary effort to reform old regime justice addressed the issue directly in 1790: legal activists argued that eliminating several elements of the cumbersome structure of everyday civil procedure, each of which had required the payment of a separate fee, would fundamentally democratise the juridical resolution of conflict.^[699] Napoleonic law and the restructuring of the legal professions in the early years of the new century, however, expunged even these small steps towards cost-free justice, the revolutionaries’ ultimate aim.^[700] The problem of the poverty and the costs of civil justice emerged with new force as a mainstream issue in the late 1830s and 1840s amid wider debates on “the social question”—that is the problem of poverty—and the proper distribution of rights and duties in a modern society.

Poverty and civil law were of particular concern to French liberals, whose peculiar Gallic blend of conservatism and faith in progress led them to believe that the balance of freedom and order in a society so clearly prone to revolutionary uprising required the stabilising force of law in all aspects of life.^[701] The array of fees laid out in Napoleon’s 1806 Code of Civil Procedure, many of these commentators agreed, were still high enough to exclude large numbers of French people from the courtroom. To press a suit, marry, or pursue other acts of civil justice required payment of a num­ber of distinct court fees in advance of the hearing or ceremony.^[702] The sum of these costs thus placed civil justice out of reach, even for the majority of the working poor. Regular access to legal advice or representation likewise seemed a privilege reserved primarily for those of means.

At this time, what little legal aid for the poor there was came primarily in the form of pro bono advice provided by bar associations at the local level. This service had been bound into the corporate ethics of French legal practice for centuries. Its voluntary provision was formalised in Napoleonic reorganisation of the profession in the early 1800s.^[704] Even so, not all litigants in need were served by this ad hoc philanthropic practice. Private charitable organisations also stepped in to provide legal aid to the poor for certain matters. The Societe de Saint-Franfois-Regis, for example, was a Catholic philanthropic association that helped poor cou­ples with the costs of marriage registration and the official legitimation of children whose civil status could be changed with the post-natal marriage of their parents.^[705] Inspired by these efforts, the legislature enacted a national finance law in 1846 that provided relatively restricted fee relief for impoverished couples seeking to marry or legitimate their children.^[706] The provisions laid out in this finance law would be elaborated further in new legislation enacted in December 1850, similarly focused specifically on the costs of marriage, legitimation, and the retrieval of children from found­ling homes.^[707]

Despite these measures, however, reformers in this period maintained that France did little to offset the profound civil incapacity of the poor citi­zen. In the 1840s, the Academy of Moral and Political Sciences, whose membership comprised many prominent liberal intellectuals and political figures, including Alexis de Tocqueville, launched a major inquiry into the question of poverty and justice.^[708] The Academy’s influential treatises set out an important part of the ground on which the Chamber of Deputies, the lower house of the French legislature in this era, would come to address history, law, and the poor person’s exclusion from civil justice at the end of the decade.

Both Beaumont and Vivien devoted their studies to assessing the merits of different extant forms of legal aid in France and abroad, from the waiv­ing of fees to the appointment of an avocat despauvres, or advocate for the poor, as had been done most famously in the Italian kingdom of Sardinia.^[710] Both texts also adopted a narrative frame that stressed the importance of public legal aid as a measure of historical progress and as an index of the forward-thinking nature of French civilization. Invoking France’s reputa­tion as an “advanced civilization,” for example, Beaumont noted that jus­tice seemed ever more “inaccessible” for the poor. “Strange progress,” he remarked, “that incessantly perfects the protection of the strong, while making the support requested by the weak more and more impossible.”¹⁸

The emphasis on poverty as a cause of both suffering and disabling constraint in turn impelled the representation of state-provided aid as an ethical imperative of modern governance going forward. In both Beaumont and Vivien’s views, however, this did not mean framing legal assistance in the discourse of rights. Instead, they cast the systematic offer of aid as the state’s philanthropic obligation to the poor civic outsider that would signal France’s temporal and moral arrival as an ethically sound liberal constitutional regime. “In a free country where the constitution declares the equality of all before the law,” Vivien contended, “it is not sufficient that justice be impartial, independent, enlightened, it must also be accessible to all, to the poor man as to the rich one.

Vivien’s recommendation for legislation organising relief from the costs of justice to the eligible poor was published by the National Assembly, along with the responses of Academy members it had inspired, in its offi­cial record of 11 and 12 February 1848. In the following weeks, revolu­tion erupted in the streets of Paris, in cities and towns across the hexagon, and into the new spaces of the rapidly expanding French empire. For months, the dread that the newly declared Second French Republic would abandon the moderate ideals of liberal democracy advocated by many of its early leaders and embrace instead the radical platform of the revolution­ary left disrupted the liberal promotion of public legal aid as public

The Nimes avocat was supported by a privately endowed foundation. Schnapper (1984), p. 108.

¹⁸ Beaumont (1847), p. 25.

¹⁹ Vivien (1848), p. 358.

²⁰Vivien (1847), p. 464.

charity.^[711] By the end of the year, however, the political climate in France had again changed dramatically. With popular revolutionary zeal in Paris destroyed by the bloody June Days and the programmes of prosecution, exile, and repression that followed, those who spoke in the name of “order,” including French liberals who otherwise celebrated freedom, began the work of re-founding a regime born of armed uprising on the illiberal bedrock of restraint and reaction.^[712] The constitution of the Second Republic enacted in November 1848, for example, bore no sign of one of the revolution’s most radical claims on behalf of the poor: the right to work.^[713] That demand had emerged at the heart of the left’s rejection of assistance as a form of charity that merely ameliorated the effects of pov­erty rather than ending the misery of the poor once and for all.

In this political climate, anti-revolutionary jurists and government offi­cials, wary of unrest and eager to restore the liberal rule of law to everyday life, returned to the shelved project of drafting legislation on l’assistance judiciaire in 1849.^[714] History, progress, and the past and future of French “civilization” again returned to the centre of juridical discourse. According to Charles Bioche, avocat at the Paris Court of Appeals (cour d’appel de Paris) and influential author of texts on civil procedure, the provision of legal assistance to the needy still served as an important, historically mean­ingful index of national moral standing. “In the law of all civilized peoples, whether ancient or modern, there are special dispositions that facilitate poor people’s access to the courts,” he argued in preface to his proposal for a law on legal aid in 1849.^[715] In 1850, Emile Delapalme, judge at the Court of Cassation, echoed the position of his colleague, explaining that providing legal aid of some kind was a critical measure of “progress” in “custom and generous opinion...”^[716]

As they reflected on the future of legal aid as exemplifying the virtuous fulfilment of state duty, however, and even as the new constitution made clear that the Second Republic would accord poor men the franchise but not social or economic rights, these jurists could not completely bury the remains of older anxieties about past revolutionary rights claims. Indeed, those fears disturbed their confidence in both progress and the power of law to restore healthy order to French society in the present and future.

Parliamentary debate closely followed this line of temporal imagining that marked juridical writing. Here too, however, faith that law had the capacity to produce a supplemented legal equality, and so produce a more just future, was accompanied by the growing fear of disorder and an inten­sified illiberal desire among liberal reformers for limiting, rather than increasing, access to the bench.^[718] This anxiety, in turn, further challenged the hope that legislation instituting public legal aid might at last secure the nation’s regularly asserted claims to progress and civilisation, tying reform­ers’ political and moral double-bind to a complex temporal one. In what forms might providing legal aid to the poor legal outsider—seen after 1848 as an imperative but still voluntary state obligation—realise the goal of more equitable access to justice without putting the fragile stability of French society at risk in new ways?

One important answer in 1849 and 1850, along with continuing to refuse to define l'assistance judiciaire as a right, lay in determining a ter­minology of poverty and the poor that might help to purge economic inequality of its historically explosive connotations and so began to create a space for its long-term governance going forward.^[719] The report on the draft law presented by parliamentary commission, authored by commis­sion head Antoine de Vatimesnil, thus contended that the term “indi­gence,” used in the government’s bill, was excessively laden with inherited moral and political connotation. Instead, Vatimesnil endorsed the phrase “insufficient means” (insuffisance de ressources), which the commission’s members hoped would separate the question of need going forward from past humiliations of dependency and also—albeit implicitly—from the mobilising languages of poverty that were so deeply entrenched in French revolutionary history since 1789.^[720] This idea was firmly rejected by the Conseil d'Etat, the body that advised the French government on draft legislation and decrees. In its response, the Conseil argued that the legisla­tion on legal aid must use the word “indigence.” This was largely because the Conseil, a critical piece of the conservative regime that emerged from the ashes of the 1848 uprising, sought not to break from the past, but rather to rebut it directly by rejoining the threads of past, present, and future in the continuities of the moralising discourse of charity. According to Vatimesnil, the Conseil opinion contended that the use of the term would likely have fiscal benefits as well, since the veil of shame long associ­ated with it would perhaps reduce the number of people seeking assistance and so diminish the potential burden on state finances.^[721]

The word “indigence” raised new questions of definition and parame­ter after 1848. In the eyes of the commission, the poor individual’s eligi­bility for legal assistance should not be measured against those thresholds of income or tax liability used in the allocation of other forms of public assistance to the poor or disabled. Instead, it endorsed a more restricted sense of the term. “Judicial indigence,” the report concluded, “is nothing other than the impossibility of asserting one’s right before the courts, and consequently, it is relative.””^[722] This specific understanding of “indigence” marked the commission’s second effort to isolate poverty and the poor from received histories of collective material suffering, social inequality, and political unrest, even as those same stories continued—tacitly but clearly—to organise reformers’ larger claims for the critical political and historical importance of the proposed legislation. By defining destitution in strict relation to the burden of individual legal costs in a given action, lawmakers, in other words, attempted to sever it from the unruly past and the phantasms of future revolutionary upheaval that made its lawful gov­ernment seem ever more urgent. Henceforth, the poor litigant’s penury would be at least partly extracted both from France’s history of politicised poverty and from the possible futures of its revolutionary return. Poverty recast explicitly as a particular claimant’s “indigence,” in relation to a par­ticular legal action, would no longer speak to the status of the poor as a social group. In this way, it could serve in the domain of justice as a mod­ern category of moralised individuation upon which a new and more sta­ble future of state-supplemented civil equality might come to rest.

Even with this limitation, however, the ghost of poverty’s revolutionary past and the threat of its potential resurgence could not be exorcised from the final rounds of debates on the proposed legislation organising [’assistance judiciaire in France. As the records of these sessions make clear, no limiting definition of “indigence” could fully quell the ever­returning fear that the provision of legal assistance for poor citizens might open the space of civil justice in the future to a violence born of new kinds of inequality and, in particular, the menace of overly empowered and rapa­cious poor plaintiffs, the inadvertent effect of the government’s well- intentioned philanthropic action. As Deputy Defontaine warned, the new law should not allow “judicial assistance in the hands of the assisted person [to] become a means of disturbing his neighbours’ tranquility or attacking their fortunes.”^[723]

The text of the law on l'assistance judiciaire, enacted on 22 January 1851, was born of this attempt to walk the narrow line between too little access to justice in the past and too much in the future. Divided into two sections, the law treated the provision of aid in civil and criminal matters. The brief section dedicated to indigent criminal defendants offered few changes to the very limited extant forms of aid, most dating from the Napoleonic era, extending their application from those charged with seri­ous crimes to include defendants accused of petty offences as well. The greater part of the text, and the site of the law’s major innovations, described the structures and procedures that would organise public legal assistance in the domain of civil justice and, although to a much lesser extent, aid for cases heard by commercial courts and justices of the peace. The law required the constitution of new assistance bureaus to be attached to courts from the local level of courts of first instance through the upper courts of appeals. These bureaus, staffed by men with legal or public administrative experience, including attorneys, magistrates, treasury offi­cials, and retired judges, were empowered to verify both applicants’ claims of indigence and the basic merits of their cases, thus limiting—at least in principle—government support for frivolous or malicious suits. If both requirements were met and if efforts to resolve the conflict extrajudicially failed, the bureaus could then offer the indigent litigant aid in the form of a provisional suspension of the fees associated with civil trials.

Unlike the systems centred on the avocat des pauvres, the institutional order laid out by new law did not provide for any sort of state-furnished council or representation. As Representative Vatimesnil had noted in his report, the legislative commission drafting the law had rejected the Sardinian model of the avocat de pauvres on the grounds that it would be too expensive and that it would give “the poor a formidable advantage over the rich in having their causes litigated by actual magistrates,” that is by permanent, salaried, government-employed court functionaries.^[724] To address the problem of professional counsel and representation, article 13 enfolded elements of the old pro bono system: in those cases where the allocation of !'assistance judiciaire had been approved, the presiding judge would “invite the president of the Bar Association, the president of the Chamber of Solicitors (avoues), the Union of huissiers to designate the attorney, solicitor, and huissier who will act on behalf of the assisted person.”^[725] Recognising this curious approach to the “requisitioning” of voluntary representation, Vatimesnil glossed this particular article in his report with the remark that it was “seemlier to use the word ‘invite’ than ‘enjoin’.”^[726] Looking back on the debates almost fifty years later, renowned jurist and assistant public prosecutor Emile Roux also emphasised the moral aspect of the professionals’ philanthropic labours. “It was not only a question of words or politeness, but a real matter of principles. The leg­islator wished to make legal assistance a voluntary work for all the bodies involved in the administration of justice.” To have made the provision mandatory, he concluded, would have “diluted” the spirit of service.^[727]

As it had been a primary justification for rejecting the creation of an office of avocat des pauvres, minimising the burden on public resources also shaped the law’s terms for the repayment of suspended fees. At the end of each trial, court costs were to be paid by the losing party, a require­ment that made the bureau’s pre-trial screening of suits appear to be a critical protection for poor litigants as well as for the integrity of the sys­tem. Finally, and of especially great concern to later critics, the new law of 1851 restricted the scope of !'assistance judiciaire in civil matters strictly to adversarial proceedings, excluding from its otherwise broad sweep the many civil actions of a more mundane, non-contentious nature that regu­larly arose in the everyday lives of the French poor in the nineteenth cen­tury, such as marriage or the legitimation of children.^[728] Although the 1851 law did not abrogate the 1846 finance law that provided limited fee relief for these family matters, neither did it take up and expand this arena of government assistance as part of its ambit.

This basic programme of assistance, framed repeatedly and insistently as governmental benevolence in the name of justice and civilisation rather than as a matter of individual civil rights, would soon become the subject of critical juristic scrutiny, both for its practical failures and, increasingly, for the vision of law, politics, and history that underpinned its invention and operation. At the turn of the twentieth century, the 1851 law would be revised in keeping with the lineaments of a new historical narrative that celebrated a French republican tradition while distancing that tradition from both the past and future of the nation’s revolutionary imaginary. This combined project of historical and legal revision soldered together contemporary politics and practice of l'assistance judiciaire in ways that facilitated wider access to the courts and made provision for greater effi­cacy in ensuring the execution of judgments. In political terms, these late- century republican reformers would attempt to isolate both poverty and equality even more comprehensively from their radical genealogies.^[729] To do this, they would rewrite the history of the law’s enactment during the conservative years of the Second French Republic, determining this past “by the telling that replace[d] it,” and thereby positing the 1851 law on l'assistance judiciaire as an incomplete origin of their own quite incom­mensurable vision of republican citizenship.^[730]