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Title: Anomalies of the English law
Author: S. Beach Chester
Contributor: Charles Lever
Release date: November 14, 2025 [eBook #77236]
Language: English
Original publication: Boston: Little, Brown, and Company, 1912
Credits: deaurider, Terry Jeffress, and the Online Distributed Proofreading Team at https://www.pgdp.net (This file was produced from images generously made available by The Internet Archive)
*** START OF THE PROJECT GUTENBERG EBOOK ANOMALIES OF THE ENGLISH LAW ***
ANOMALIES OF THE ENGLISH LAW
ANOMALIES OF THE ENGLISH LAW
BY
SAMUEL BEACH CHESTER
Of the Middle Temple, Esquire, Barrister-at-Law;
Fellow of the Royal Geographical Society;
Companion of the Military Order of the Loyal
Legion of the United States, Commandery of
Pennsylvania; Member of the (U.S.) Military
Service Institution, Governor’s Island, New York
Harbour.
BOSTON
LITTLE, BROWN, AND COMPANY
1912
PRINTED IN GREAT BRITAIN
CONTENTS
PAGE
INTRODUCTION.
A SATIRE ON BARRISTERS, BY CHARLES LEVER 9
CHAPTER I
DIVORCE 19
CHAPTER II
DEATH AND BURIAL 44
CHAPTER III
WILLS 67
CHAPTER IV
LIBEL AND SLANDER 81
CHAPTER V
IMPRISONMENT FOR DEBT 97
CHAPTER VI
THE NEED FOR THE RIGHT OF PROPERTY IN SURNAMES 116
CHAPTER VII
LITERARY CENSORSHIP 131
CHAPTER VIII
CAPITAL PUNISHMENT, MURDER AND SUICIDE 145
CHAPTER IX
LEGITIMATION 165
CHAPTER X
CRIMINAL APPEAL AND THE BALL CASE 176
CHAPTER XI
CLIENT, SOLICITOR, AND COUNSEL 185
CHAPTER XII
THE MORALITY BILL, ACCESSION, AND CORONATION
OATHS AND DECLARATIONS 203
APPENDICES.
APPENDIX A
DIVORCE 229
APPENDIX B
CORONERS 233
APPENDIX C
THE ROYAL MARRIAGES ACT, 1772 237
APPENDIX D
EXECUTIONS 239
APPENDIX E
AN ENGLISH LEGITIMATION BILL 243
APPENDIX F
THE CRIMINAL APPEAL ACT, 1907 244
APPENDIX G
THE CORONATION OATH OF KING GEORGE V 262
APPENDIX H
THE POOR PRISONERS’ DEFENCE ACT, THE PERJURY
BILL, AND THE CRIMINAL EVIDENCE ACT 265
I DEDICATE THIS WRITING TO MY FRIEND,
William H. Cozens-Hardy,
OF LINCOLN’S INN.
S. B. C.
ANOMALIES OF THE ENGLISH LAW
INTRODUCTION[1]
“Authors have long got the credit of being the most accomplished
persons going--thoroughly conversant not only with the features of
every walk of life, but, also, with their intimate sentiments, habits
of thought, and modes of expression. Now, I have long been of opinion
that, in all these respects, lawyers are infinitely their superiors.
The author chooses his characters as you choose your dish, or your
wine at dinner--he takes what suits, and leaves what is not available
to his purpose. He then fashions them to his hand--finishing off this
portrait, sketching that one--now bringing certain figures into strong
light, anon throwing them into shadow: they are his creatures, who must
obey him while living, and even die at his command.
“Now, the lawyer is called upon for all the narrative and descriptive
powers of his art, at a moment’s notice, without time for reading or
preparation; and worse than all, his business frequently lies among
the very arts and callings his taste is most repugnant to. One day
he is to be found creeping, with tortoise slowness, through all the
wearisome intricacy of an equity case--the next, he is borne along in a
torrent of indignant eloquence, in defence of some Orange processionist
or some Ribbon associate; now he describes, with the gravity of a
landscape gardener, the tortuous windings of a mill-stream: then, he
expatiates in Lytton Bulwerisms over the desolate hearth and broken
fortunes of some deserted husband. In one court he attempts to prove
that the elderly gentleman, whose life was insured for a thousand at
the Phœnix, was instrumental to his own decease, for not eating cayenne
with his oysters; in another, he shows, with palpable clearness, that
being stabbed in the body, and having the head fractured, is a venial
offence--merely the result of ‘political excitement’ in a high-spirited
and warm-hearted people.... These are all clever efforts, which demand
consummate powers of him who makes them; but what are they to that
profound and critical research with which he seems, instinctively, to
sound the depths of every scientific walk in life, and every learned
profession.
“Hear him in a lunacy case--listen to the deep and subtle
distinctions he draws between symptoms of mere eccentricity and erring
intellect--remark how insignificant the physician appears in the
case, who has made these things the study of a life long--hear how
the barrister confounds him with a hail-storm of technicals--talking
of the pineal gland as if it were an officer of the court, and of
atrophy of the cerebral lobes, as if he were speaking of an attorney’s
clerk. Listen to him in a trial of supposed death by poison; what a
triumph he has there, particularly if he be a junior barrister--how he
walks undismayed among all the tests for arsenic; how little he cares
for Marsh’s apparatus and Scheele’s discoveries--hydro-sulphates,
peroxydes, iodurates, and proto-chlorides are as familiar to him as
household words. You would swear that he was nursed at a glass retort,
and sipped his first milk through a blow-pipe.
“Like a child who thumps the keys of a pianoforte, and imagines
himself a Liszt or Moschelles, so does your barrister revel amid
the phraseology of a difficult science, pelting the witnesses with
his blunders, and assuring the jury that their astonishment means
ignorance. Nothing in anatomy is too deep--nothing in chemistry too
subtle; no fact in botany too obscure--no point in metaphysics too
difficult. Like Dogberry, these things are to him but the gift of God,
and he knows them at his birth. Truly, the Chancellor is a powerful
magician; and the mystic words by which he calls a gentleman to the Bar
must have some potent spell within them.
“The youth you remember as if it were yesterday, the lounger at
evening parties, or the chaperon of riding damsels to the Phœnix, comes
forth now a man of deep and consummate acquirement--he, whose chemistry
went no further than the composition of a ‘tumbler of punch,’ can now
perform the most difficult experiments of Orfila or Davy, or explain
the causes of failure in a test that has puzzled the scientific world
for half a century. He knows the precise monetary value of a deserted
maiden’s affections--he can tell you the exact sum, in bank notes,
that a widow will be knocked down for, when her heart has been subject
to but a feint attack by Cupid. With what consummate skill, too, he
can show that an indictment is invalid, when stabbing is inserted
for cutting; and when the Crown prosecutor has been deficient in his
descriptive anatomy, what a glorious field for display is opened to him.
“Then, to be sure, what droll fellows they are!--how they do quiz the
witness as he sits trembling on the table; what funny allusions to his
habits of life, his age, his station; turning the whole battery of
their powers of ridicule against him--ready, if he ventured to retort,
to throw themselves on the protection of the court! And truly, if a
little Latin suffice for a priest, a little wit goes very far in a
law court. A joke is a universal blessing; the judge, who, after all,
is only ‘an old lawyer,’ loves it from habit: the jury, generally
speaking, are seldom in such good company, and they laugh from
complaisance; and the Bar joins in the mirth, on that great reciprocity
principle, which enables them to bear each other’s dulness, and dine
together afterwards.
“What set me first on this train of thought was a trial I lately read,
where a cross action was sustained for damage at sea--the owners of the
brig _Durham_ against the _Aurora_, a foreign vessel, and _vice versâ_,
for the result of a collision at noon, on the 14th of October. It
appeared that both vessels had taken shelter in the Humber from stress
of weather, nearly at the same time--that the _Durham_, which preceded
the Prussian vessel, ‘clewed up her topsails, and dropped her anchor
_rather_ suddenly: and the _Aurora_ being in the rear, the vessels came
into collision.’ The question, therefore, was, whether the _Durham_
came to anchor too precipitately, and in an unseamanlike manner; or, in
other words, whether, when the ‘_Durham_ clewed up topsails and let go
her anchor, the _Aurora_ should not have luffed up, or got sternway on
her,’ etc.
“Nothing could possibly be more instructive, nor anything scarcely
more amusing, than the lucid arguments employed by the counsel on both
sides. The learned Thebans, who would have been sick in a ferry-boat,
spoke as if they had circumnavigated the globe. Stay-sails, braces,
top-gallants, clews, and capstans they hurled at each other, like
_bon bons_ at a carnival; and this naval engagement lasted from
daylight to dark. Once only, when the judge ‘made it noon,’ for a
little reflection, did they cease conflict, to renew the strife
afterwards with more deadly daring, until, at last, so confused were
the witnesses--the plaintiff, defendant, and all, that they half wished
they had gone to the bottom, before settling their differences in the
Admiralty Court.
“This was no common occasion for the display of these powers so
peculiarly the instinctive gift of the Bar, and certainly they used it
with all the enthusiasm of a _bonne bouche_.... How I trembled for the
_Aurora_, when an elderly gentleman, with a wart on his nose, assured
the court that the _Durham_ had her topsail backed ten minutes before
the anchor fell; and then, how I feared again for the _Durham_, as a
thin man in spectacles worked the Prussian about in a double-reefed
main-sail, and stood round in stays so very beautifully. I thought
myself at sea, so graphic was the whole description--the waves splashed
and foamed around the bulwarks, and broke in spray upon the deck; the
wind rattled amid the rigging, the bulkheads creaked, and the good ship
heaved heavily in the trough of the sea, like a mighty monster in its
agony. But my heart quailed not--I knew that Dr. Lushington was at the
helm, and Dr. Haggard had the look-out ahead--I felt that Dr. Robinson
stood by the lee braces, and Dr. Addison waited, hatchet in hand, to
cut away the mainmast! These were comforting reflections, until I was
once more enabled to believe myself in Her Majesty’s High Court of
Admiralty.
“Alas! ye Coopers, ye Marryats, ye Chamiers--ye historians of
storm and sea-fight, how inferior are your triumphs compared with
the descriptive eloquence of a law court. Who can portray the broken
heart of blighted affection like Charles Phillips in a breach of
promise case? What was Scott compared to Scarlett?--how inferior is
Dickens to Counsellor O’Driscoll?--here are the men, who, without the
trickery of trade, ungilt, unlettered, and unillustrated, can move the
world to laughter and tears. They ask no aid from Colburn, nor from
Cruikshank--they need not ‘Brown’ nor Longman, Heaven-born warriors,
doctors, chemists, and anatomists; deep in every art, learned in every
science--mankind is to them an open book, which they read at will, and
con over at leisure--happy country, where your talents are so available
that they can be had for the asking.”
FOOTNOTE
[1] A satire on barristers, by Charles Lever.
CHAPTER I
DIVORCE[2]
The administration of justice in this country is to some extent
idealised by the world at large. Certainly, there is honesty of purpose
in the word and act of every English judge. But where the law is wrong
the most painstaking and conscientious judge can hardly be right.
Then, again, for example, where a judge is compelled to combine three
distinct and separate jurisdictions in one, as in Probate, Divorce, and
Admiralty, the machinery of justice must sometimes tend to clog. It is
also utterly incongruous for the same judge to be expected to perfect
himself in three subjects so widely different in character. What, for
instance, could be further removed from the troubles of a man and his
wife than the navigation of ships on the high sea? Probably a liability
to collision is the only point in common! Probate is less remote in one
sense and equally so in another. It is almost grossly anomalous to run
these three branches of law and legal training in the same division,
presided over by the same judges. Probate should be shifted to the
Chancery Division, Admiralty to the King’s Bench, and Divorce might be
allowed a little court of its own.
Before 1858 matrimonial causes were in the jurisdiction of the
Ecclesiastical Courts, which by the grace of God and the law of the
land are now almost limited to the punishment of ecclesiastical black
sheep--a sufficient occupation, perhaps, in itself! Actual divorce, by
the way, was only possible in those days by means of a Private Act of
Parliament. (This method still applies in Ireland.)
But to come to the law as it now stands, it seems to contain at
least two great imperfections, namely, the judicial separation and the
dreadful tie between an erring husband and an erring wife. In cases
of the latter description, the practice is to prevent the parties to
the predicament from mending their ways or improving their hope of
happiness, whatever form that hope may take. It also frequently leads
to the misfortunes of a third person, who might otherwise escape on
a conscionable arrangement. _A_ is the husband of _B_. _A_ commits
adultery and his wife does likewise. They then discover their common
shortcomings, with the consequence that they forthwith become violently
opposed to one another and separate. What is the net result? They
are tied together for life; _B_ soon becomes desperate; presently,
she encourages many lovers and her last vestige of self-respect
disappears. Henceforth, she is a _déclassée_. _A_, on the other hand,
ultimately settles his affection on one woman, otherwise blameless
in character. He cannot marry her and she drifts into concubinage.
Had some means existed to bring the unfortunate marriage of _A_ and
_B_ to an end at the time of their original delinquencies, all of
these later developments might have been, almost certainly would have
been, avoided. The usual inability, therefore, for an erring husband
and an erring wife to legally dissolve their union, sows the seed of
increasing injustice, which may, and probably does, extend to the
punishment of persons who were not parties to the primary condition
of adultery. A divorce should be obtainable, as of course, on the
application of either party to a marriage, after one year’s domiciliary
separation, whether such separation is due to mutual transgression, or
merely to the lesser evils of married life. Under such a condition of
affairs, the community would be bound to benefit.
The judicial separation of to-day is one of the most unsatisfactory
phases of matrimonial law and practice. Let us, for example, assume
that _C_ is the husband of _D_. _C_ is a drunkard, a man of loose
morals and disagreeable temperament. _D_ is the reverse in every
possible respect, a woman of culture, youth and beauty. Her moral sense
is exemplary and her conduct is always quite beyond reproach. After a
most unpleasant legal experience, she obtains a judicial separation.
Her position becomes isolated; she has a living husband, whose name she
bears, she has attractions, but she can hold out no hope to a suitor,
for she is still legally tied to the man from whom she is legally
separated. Could a greater anomaly exist? It is unfair in the extreme.
The most she can do, within the narrow limit of her outlook, is to
resign herself to a physically unfair position, and await her husband’s
death, which may not occur until her youth and beauty have vanished and
she, too, confronts the grave. This is the practical outcome of many
judicial separations, which ought in all justice to be done away with.
Abolition, with an easier method of securing a divorce proper, is the
need of the moment.
With all due respect to the King’s Proctor, a somewhat thankless
office, the interval--one may call it the probationary interval--which
must elapse between the granting of a decree _nisi_ (or preliminary
decree) and the granting of the decree absolute (or final decree)
should be removed. In Scotland, there is only one decree necessary in a
divorce suit. That one decree is final. The law in this country should
be altered to resemble the Scotch law in this respect, at any rate. The
_entr’acte_ which separates the decree _nisi_ from the decree absolute
is generally a great hardship on a perfectly innocent party. It
inflicts an un-English penalty which might well be deleted from the law
of the land. Why should some drooping little petitioner of the feminine
gender, already distraught with the aftermath of acute anxiety, be
subjected to a fresh period of tension, prolonged for another six
months? Somehow, one wonders why such a flagrant misconception of true
justice should remain on the statute book. Of course, were it not for
such anomalies, there would be no reason to look upon divorce law as
a subtle and mysterious creation of the Devil, or as an involved and
merciless contribution to penal literature, but, in its existing state,
a good deal of harsh criticism is perfectly fair.
The law of divorce should be a set of social rules applied to the
law of nature, and little else. Complicated procedure, or difficulty
in obtaining bare justice, is entirely beyond the mark in this branch
of jurisprudence. The Crown--one hesitates to say “the State” in these
days of attempted Socialism--could confer a practical benefit on the
public by reducing the whole law of divorce to a few simple issues,
free from the ramifications of torment and irritation which apply at
present. A Royal Commission is not needed to unconsciously hide, rather
than to uncover, the discrepancies of the law. The process of wallowing
in volumes of evidence is confusing to say the least. It is a process,
nevertheless, which, it may not be impertinent to assume, is the main
fault with the Royal Commission on Divorce. It has sat and sat and sat
again. It has heard the evidence of persons theoretically qualified to
give evidence on the subject. It has listened, not without impatience,
perhaps, to every sort of opinion, some, by the way, of a praiseworthy,
and even ingenious character, but a frank contemplation of life as it
is would have resulted in a better point of view than all the formal
procedure on earth combined. An absence of sufficient consideration, so
far as the purely human side of a problem is concerned, must inevitably
lead to failure where the subject is divorce--of all things. For
instance, as the law stands, what is the result of tying the hands
of an erring husband and an erring wife? One of two things. Either
the loose condition already illustrated, or the connivance of the
parties in question, in the matter of a petition. Both are hopelessly
undesirable, even wicked, and, consequently, no honest support can
be extended to a continuance of such a legal anomaly. A law which
gives any inducement to vice, directly or indirectly, or makes vice
an alternative to uncomfortable virtue, unexpected virtue, should be
definitely altered to meet the demands of the social system.
There are many other variations arising from the existing state of the
law. Suppose a married woman commits adultery and her husband takes
action to secure a divorce. The six months interval between the decree
_nisi_ and the decree absolute may just frustrate a co-respondent’s
desire to marry the respondent in time to give his name to a child of
the _liaison_. All these things should be considered, indeed _would
be_ considered, if the members of the Divorce Commission were to deal
with the whole question from a human standpoint, rather than from a
standpoint of apathetic contemplation.
A unique grasp of a tangled skein was recently exhibited by a judge
of the Probate, Divorce and Admiralty Division of the High Court of
Justice, when a woman who, it was shown, had misconducted herself,
was nevertheless granted an absolute decree of divorce against her
husband.[3] It appeared that the woman, who petitioned, had passed a
very dreadful life, which began by her seduction by her father’s groom.
The groom became her husband; she ultimately took divorce proceedings
against the man, but lapsed herself before obtaining the final decree.
The judge took a magnanimous view of the facts, sympathised with the
petitioner in her unfortunate life, and granted her what she sought.
The whole course was novel, but it left people with the impression that
greater justice had been done in this way than would have been done
had the judge refused the divorce. The case is not without interest as
a precedent. It savours of benignity and commonsense, coupled with a
sufficient disregard for inadequate conventional methods. The prospect
of lifting a fallen woman, from a sordid atmosphere to a plane of
respectability, no doubt chiefly actuated the judge in his decision.
His summing up, indeed, made this perfectly clear.
The existence of the peasant is not, perhaps, intellectually
interesting, as a rule, but his predicament, were he minded to take
divorce proceedings, would contain some instructive matter. In the
first place, his method of attacking such a question would be to
petition _in formâ pauperis_. This is more easily said than done, for
a tough and wide-awake solicitor must first be convinced that he is
justified in giving credit to the would-be litigant. Giving such credit
really means that he must be confident that it will be satisfied in due
course by the authorities. He therefore considers the facts of the case
with more than ordinary self-interest. The influence most likely to
induce him to take up the case is the reasonable certainty of success.
The anxious divorce candidate must perforce be capable of making his
facts very clear and speaking, if he wishes to secure the services of
the solicitor. When this feat has been accomplished, he is in a fair
way to proceed _in formâ pauperis_.
A singular case of matrimonial difficulty, where the parties were
of the lower orders, was recently brought out in the Norwich County
Court. The facts arose in a claim, or rather in two claims, under
the Workmen’s Compensation Act. It appeared, that a man named Mathew
Charles Clarke was killed while working for the Norwich Corporation.
Two compensation claims were at once put forward by two women, each
woman setting herself up to be the man’s wife. According to the report,
Mathew Charles Clarke, the defunct workman, married a woman named
Elizabeth Shreeve in the year 1870. This important ceremony took place
at Norwich. In 1873, the happy couple migrated to Newcastle, with the
two children of the union. The following year they all returned to
Norwich, in order that Clarke might go through his annual training in
the Militia. The villain of the piece, a Militiaman called James Leech,
then appeared on the scene. His initial _rôle_ was that of a friend
of the husband. When the Clarkes returned to Newcastle, Leech, most
appropriately named, went with them. His status was that of a lodger in
the household. The personality of the man must, for his humble sphere,
have been great indeed, for, in 1875, we find Mathew Charles Clarke
ousted from his house and from his wife’s embraces; ousted, even, from
Newcastle. Leech and Mrs. Clarke remained, while poor Clarke was only
too glad to get back to Norwich alive. In 1886, eleven years after
his departure from Newcastle, Clarke went through a form of marriage,
before the Registrar at Norwich, with a woman named Elizabeth Cotton.
This woman lived with him as his wife until his death. She did not
know, it may be added, that he had ever had any previous matrimonial
experience. From 1875 until 1888, Mrs. Clarke and her quondam lodger,
Leech, remained at Newcastle. Then, they, too, returned to Norwich. No
doubt they expected to make a “good thing” out of Clarke’s death, for
no sooner had the man been killed than Mrs. Clarke put in her claim
for compensation. Elizabeth Cotton, who had long believed herself to
be the lawful spouse of Mathew Charles Clarke, then discovered to
her dismay that her alliance was fictitious in law. She, however,
persisted in her claim for compensation. No doubt a dramatic scene
took place in the County Court, when the two fair relicts of Mathew
Charles Clarke, deceased, shrieked their rights at the judge. We have
heard of the Rights of Man, but they are as nothing alongside of the
rights of women--more particularly of the class in question. His Honour
Judge Mulligan, K.C., who heard the claims, was no doubt sorely tried
before he was able to say, “I infer that Clarke was well aware of the
relations between his wife and her lodger, and would, if he had been a
man of means, have employed one of the esoteric counsel in the Divorce
Court to obtain a dissolution of his marriage. But he had not the
means to go to London, and there is no Divorce Court in Norfolk. The
Divorce Act is, in fact, administered only in London, and there only
for the relief of a few wealthy persons who suffer from the erotic
misadventures of a few others of the same class--for the relief only
of rich victims of the naughty rich. So far as workers in the country
like Clarke are concerned, the Divorce Act might as well not have been
passed. As there was no practical means of dissolving his marriage, the
man committed the crime of bigamy.” His Honour concluded by saying,
“The Workmen’s Compensation Act does not palliate bigamy; it does not
subsidise adultery.” Judgment was given for the mayor and corporation,
and both claims for compensation were dismissed. Sordid as this story
may be, it seems to forcibly express the necessity for extending
cheap divorce facilities to the County Courts. Certain days might be
set aside for the hearing of divorce cases, without overtaxing the
mentality or the endurance of the learned judges. It might even afford
them some trifling reaction from the constant billow of petty money
claims.
Public policy in this age certainly supports cheap divorce facilities.
After all, there is no reason why a systematic reduction of law
expenses should not be brought about in all the courts of the land. As
matters stand, the rapacity of solicitors is more to blame than the
high fees of well-known counsel. If a solicitor is “skilful in drawing
a bill of costs,” his future is assured, as many a client knows to his
or her misfortune. The degree of skill becomes apparent by the amount
of the bill after it has passed the Taxing-master! The thousand and
one details which can be colourably incorporated in a bill of costs,
arising out of divorce proceedings, are often a revelation to the
professional eye. Every man believes _his_ solicitor to be honest. Let
the day of disillusionment be far off!
A matrimonial case of curious interest recently came before the
courts. It was an almost unique instance of the length a woman will
go, on the force of an impulse. The President of the Probate, Divorce
and Admiralty Division, described the facts as “extraordinary.” So, in
truth, they were. On February 4th, 1910, a married woman named Dean set
out for Olympia, with her sister, Mrs. Smith. They were accompanied
by a male acquaintance of Mrs. Smith. It was adduced by the evidence
that the husband of Mrs. Smith objected to the “male acquaintance”
referred to. Mr. Smith, a commercial traveller, discussed the matter
with his wife on the following day. It has since been alleged that
there was a scene, in the middle of which Smith threatened his wife
with divorce proceedings and divers other ills. Mrs. Smith was
naturally very much agitated and appealed to her sister, Mrs. Dean, for
a solution of the difficulty. The latter proved herself to be a woman
of ready resource, for she replied, “I will say I have misconducted
myself with Henry!” (“Henry” was Mrs. Smith’s husband.) Mrs. Smith
was very grateful, indeed, and asked her sister whether it would be
all right. Mrs. Dean reassured her on this point, and the “plot” was
complete. It was then agreed that Mrs. Smith should communicate the
fact of his wife’s adultery to Mr. Dean. The upshot of it all was
that Mrs. Smith telephoned Dean, without further delay. It was under
these circumstances that at an interview, soon afterwards, Mrs. Dean
confessed to her husband that she had in fact committed adultery with
her brother-in-law, Henry Smith. She, however, refused to put her
admission into writing. On February 7th, in the presence of other
persons, her mother, sister, etc., Mrs. Dean told her husband that
the whole incident was a concoction on her part, and that there was
no truth whatever in the recent “confession.” Dean refused to believe
her and took steps to petition for divorce. In answer to the judge,
at the hearing, Mrs. Dean said that her sister had never believed the
confession, and had never accused her of having misconducted herself
with Smith. When the co-respondent, Smith, went into the witness-box,
he said that he had hardly treated the question seriously. He had heard
about the plot sometime in February, and he then and there told his
wife and her sister that they must have been mad to have conceived
such a thing. The petitioner, Dean, informed the court that he had
never known anything about the plot until that day. In the result, the
jury found that there had been no misconduct, and the petition was
dismissed, with costs.
What is known as the “restitution of conjugal rights” might as a
phase of matrimonial law be consigned to the scrap-heap.[4] A certain
petition of this class attracted some interest three or four years
ago, when a married woman, judicially separated, brought her husband
into court as a respondent. Though this story has no legal point, it
may perhaps be given here. In a few words, the petitioner, who, it
was alleged, was addicted to drink, had gone to Switzerland. She was,
as already stated, judicially separated from her husband, and, in
consequence, a petition for the restitution of conjugal rights would
have been entirely out of the question, unless, of course, the husband
had committed some act to render the force of the separation void. The
petitioner’s case was that her husband had followed her to Switzerland,
and had there had intercourse with her. His story, on the other hand,
was that he had gone to Switzerland to obtain the custody of a certain
child of the marriage, owing to the mother’s inability to take proper
care of it. He denied that intercourse had occurred between himself and
his wife. The case was a difficult one to decide, for there appeared to
be some foundation for the allegation concerning the wife’s habits. The
judge, however, believed this lady’s version and made an order against
the husband for the restitution of conjugal rights. The whole case
centred round the one point. Did the husband have sexual intercourse
with his wife on a certain date at a certain place in Switzerland? The
issue was clear enough, but the facts leading up to it were complex in
the extreme. The weaker vessel gained the benefit of the doubt. All
such cases are more or less unsatisfactory. If there had been a clear
divorce, instead of a separation, where these unfortunate people were
concerned, the Swiss episode would have been unimportant. Several days
of the court’s time would have been saved in arriving at a decision,
which, after all, was of small value to either party.
“Among the Romans, divorce did not require the sentence of a judge,
and no judicial proceedings were necessary. It was considered a private
act, though some distinct notice or declaration of intention was usual.
At one period it was the practice for one of the spouses to intimate
the divorce to the other in an epistolary form, by means of a freedman,
in presence of seven witnesses, all Roman citizens above the age of
puberty; and this was no doubt intended to preserve clear evidence of a
transaction which was attended with such important effects on the civil
rights of the parties concerned.”[5]
This simple means of obtaining marital freedom contains much to
recommend itself to the unhappy people who are barbarously tied
together to-day, in spite of their mutual antagonism of temperament and
desire. In France, the Civil Code authorises divorce on the following
grounds: “(1st) Adultery by the wife, or by the husband if he kept a
concubine in the common dwelling-house; (2nd) Outrageous conduct or
ill-usage by either of the spouses; (3rd) Condemnation to an infamous
punishment; and (4th) In a certain limited class of cases by mutual
consent, but only upon the conditions and under the restrictions
specified, which are of the most stringent character.”[5]
It is interesting to refer to the Scottish law on the same subject,
particularly when it is stated by an eminent Scottish judge, Lord
Mackenzie, in his work on Roman Law. “By the law of Scotland a divorce
may be obtained by the husband or the wife on the ground of adultery,
or of wilful desertion for four years together, without just cause,
after adopting the forms of the Act 1573, c. 55, so far as these are
still required.... In suing for a divorce in Scotland the wife has
precisely the same rights as the husband. If she can prove adultery
or wilful desertion for four years by the husband, that entitles her
to take proceedings for a divorce, in the same manner as adultery or
wilful desertion on her part entitles him to a similar remedy....
The action of divorce proceeds before the Court of Session, and the
right to institute it is personal to the husband or the wife. As a
preliminary, the pursuer is required to make oath that the suit is
not collusive. In this and all consistorial actions the summons must
be served upon the defender personally when he is not resident in
Scotland; yet, upon evidence to the satisfaction of the court that the
defender cannot be found, edictal citation will be held sufficient;
but in every case where the citation is edictal the summons must be
served on the children of the marriage, if any, and on one or more
of the next-of-kin of the defender, exclusive of their children,
when the children and next-of-kin are known and resident within the
United Kingdom; and such children and next-of-kin, whether cited or
so resident or not, may appear and state defences to the action....
When the husband sues for divorce on the ground of adultery, he may
cite the alleged adulterer as a co-defender, and the court may order
him to pay the whole or any part of the costs, or may dismiss him from
the action, as may seem just.... In the case of adultery, divorce
is barred by condonation or forgiveness, as well as by collusion or
connivance. Recrimination cannot be pleaded as a defence to exclude the
suit, but it may be stated in a counter-action, as the mutual guilt may
affect the patrimonial interests of the parties.... The legal effect
of divorce on the ground of wilful desertion under the Act 1573, c.
55, is, that the offending husband is bound to restore the tocher
(_dos_), and to pay or implement to the wife all her provisions, legal
or conventional; and the offending wife forfeits her terce, and all
that would have come to her had the marriage been dissolved by the
predecease of the husband. By analogy the same consequences have been
extended to the case of divorce for adultery, with this exception, that
it appears to have been decided, upon very questionable grounds, that
the offending husband in the case of adultery is not bound to restore
the tocher.... After divorce, both parties are at liberty to marry
again; but the Act 1600, c. 20, annuls any marriage contracted between
the adulterer and the person with whom he or she is declared by the
sentence of divorce to have committed the offence.”
This extract, though somewhat lengthy, seems to give every essential
point of the Scottish law of divorce in a clear, easily-understandable,
form. With the exception of the law of 1600, which forbids the
subsequent marriage of the defender and co-defender--a harsh and
unnecessary condition--Scotland does not appear to be too ill-favoured
in her machinery for dealing with divorce. Indeed, there are other
branches of Scottish law, on which it is intended to touch in this
work, which contain a better perspective of justice than similar
branches of law in this country.
Bodies of law grow up by a gradual process, and this gradual process
generally tends to blunt the faculties of criticism; the law as it is
seems a part of nature, whereas it is often little else than a bad
habit!
For persons with a certain taste for legislative phraseology, the
existing Divorce Act, 1857, will be found interesting. It is the desire
of the writer to suggest certain alterations, or amendments--or the
repeal of the Act, with new legislation of a common sense kind to take
its place. To summarise in a few words the purpose of this chapter, the
requirements of the day seem to indicate the necessity for:--
(1) A Divorce Court, with a judge or judges exclusively occupied with
matrimonial causes.
(1a) The transference of Probate and Admiralty work to the Chancery and
King’s Bench Divisions respectively.
(2) The granting of divorce to either party where domiciliary
separation has existed for one year.
(3) The granting of divorce to either party where both parties have
misconducted themselves (in such cases the custody of any children to
be shared by the parents--six months out of each year the right of
custody to vest in the mother, and six months in the father).
(4) The abolition of the judicial separation; also, of the separation
by deed.
(5) The abolition of the petition for the restitution of conjugal
rights.
(6) One decree of divorce to be final and absolute at the time of
granting--consequent abolition of the existing form, the “decree nisi”
and the “decree absolute,” with the objectionable six months’ interval
(7) The system of granting financial provision, _i.e._, alimony, to
an untainted wife who petitions, to stand on the present basis. Also,
damages against a co-respondent to stand.
(8) The elimination from a petition of the allegation of “cruelty”
which now has to be proved by a petitioning wife before she can obtain
a divorce. Adultery without “cruelty” to form a foundation for a
successful petition.
(9) The donation of powers to grant divorce to all County Court
judges, for purposes of expediency in connection with the poor.
These seem the principal points associated with “what the public wants”
in this age of a better appreciation of the “nature of the beast”--Man,
or more correctly, Mankind.
FOOTNOTES
[2] See Appendix A.
[3] Pretty _v._ Pretty.
[4] “In granting the application of a Paris doctor for restitution of
conjugal rights, the judges have made an interesting new departure by
fixing a penalty of £4 for every day’s delay in complying with the
order of the Court. They consider this the most practical means of
bringing the recalcitrant wife to reason.”--_Pall Mall Gazette._
[5] Lord Mackenzie in _Studies in Roman Law with Comparative Views of
the Laws of France, England, and Scotland_.
CHAPTER II
DEATH AND BURIAL[6]
The office of the coroner dates back for many centuries, but it has
never grown to much importance, despite the blazing interest which
sometimes attaches to it during the preliminaries leading up to a
notorious murder trial. The coroner may be any one of a great variety
of things from a barrister to a doctor, from a solicitor to a man
who can just read and write. It is this variation in qualification
which has perhaps helped to prompt the persons responsible for the
introduction of the new Bill--The Coroners’ Law and Death Certification
(Amendment) Bill.
Too little regard is paid to death by most people, beyond the matter
of testamentary disposition, and even that is often neglected. Death
deserves as much consideration as life itself, and to neglect its
contemplation exhibits a certain want of foresight. It may be that
from time immemorial it has savoured of supernatural association, but
after all it is the most ordinary incident of nature to which we are
subject. One has no hesitation in giving the laws relating thereto the
advantage of publicity, for the simple reason that they should be no
less interesting than intimate essays on the rules regulating divorce,
or marriage, or any other peculiarly human question.
Some estimate of the purpose of the new Coroners’ Bill, will be found
in the following _Memorandum_:
“This Bill, which does not apply to Scotland or Ireland, is intended to
remove certain anomalies in the law relating to coroners and inquests,
and to the certification of deaths, disclosed by reports of several
committees during recent years.
“The Coroners’ Act, 1887, did little more than codify the principal
features of the law and practice of coroners, which had become confused
and complicated by numerous statutes dating from the reign of Edward
I. In 1893 a Select Committee was appointed to ‘inquire into the
sufficiency of the existing law as to the disposal of the dead, for
securing an accurate record of the causes of death in all cases, and
especially for detecting them where death may have been due to poison,
violence, or criminal neglect.’ The report of that committee indicated
the urgent necessity for reform. The Inter-Departmental Committee on
Physical Deterioration which sat in 1903 also directed attention in
their report (_vide_ Bill) to the dangers incidental to the defects in
the law relative to the registration and certification of deaths and
recommended the registration of still births.
“The law relating to coroners is not adapted to modern necessities;
its administration is costly to local authorities without securing
efficiency in results.
“In December, 1908, a Departmental Committee of the Home Office was
appointed to inquire into the law relating to coroners and coroners’
inquests, and into the practice in coroners’ courts.
“The provisions of this Bill are intended to give effect to many of
the recommendations of the Departmental Committee of 1908, and of the
Death Certification Committee of 1893.
“The report of the Departmental Committee drew attention to anomalies
existing in the appointment of coroners in certain ‘franchise
districts’ in the qualifications required of coroners, the conditions
of their appointment, the mode of their remuneration, the provision of
deputies, the areas of jurisdiction, etc.
“The law does not at present contemplate inquiry by a coroner except in
view of a subsequent formal inquest, nor can he order a _post mortem_
examination except in a case of inquest. The coroner’s officer, to whom
important duties are confided, is an official unknown to the law. The
viewing of the body by the jury is still compulsory, though no longer
deemed necessary in all cases. Attention was also directed by the
Committee of 1908 to the need for better provision in regard to skilled
medical investigators and to the remuneration of medical witnesses.
“The Departmental Committee recall the findings of the Select
Committee on Death Certification of 1893, which have not hitherto been
the subject of legislation, as bearing directly on the functions of
the coroner. Thus at present the law does not require a certificate of
death to _certify as to the fact of death_,[7] or as to the identity of
the deceased, but merely the cause of death. They further state that
‘it is no fault of the law if premature burials do not take place.
_The present law of death certification offers every opportunity for
premature burial and every facility for concealment of crime._’”[7]
With allusion to premature burial and concealment of crime, the
_Memorandum_ attached to the new Bill comes to an end. The Bill itself
settles down to deal with “Coroners.”
Section 1. “Every power to appoint a coroner shall cease upon the
first occurrence of a vacancy in the office of coroner after the
_commencement of this Act_.”
Then follow certain references as to the redistribution of coroners’
jurisdictions. The financial aspect of the office of coroner is not
neglected.
Section 2. “There shall be paid to every coroner such salary as the
authority by whom he is appointed and paid may decide, provided that
after the lapse of five years from the date of appointment of the
coroner, and of every successive period of five years, it shall be
lawful for the authority to revise and thereby increase or diminish
such salary, and if the coroner is dissatisfied with such revision
the Secretary of State may determine the amount of such salary on the
application of either the authority or the coroner.”
Another provision which exhibits a certain foresight, defines the
question of age limit: “Every coroner shall cease to continue to hold
the office of coroner on reaching the age of sixty-five years, provided
that the Secretary of State may continue such coroner in office for a
further period not exceeding five years on the application of either
the authority by whom he was appointed or the coroner.”
The question of granting the retired coroner an annuity by way of
superannuation allowance appears to be justly provided for; the
authority of the Home Secretary is left to decide the amount, together
with the detailed regulations relating to such payment. What is of
greater public importance seems to be contained in the next provision,
which deals with the qualifications of coroners.
Section 5. “No person shall be appointed a coroner unless he be a
practising barrister of not less than five years’ standing, or a
solicitor of not less than five years’ standing, or a registered
medical practitioner who is also a barrister or a graduate in law of
a University in the United Kingdom, provided that no member of the
authority making the appointment, or any person who has been a member
of such authority within a period of twelve months immediately before
the making of the appointment, shall be eligible for appointment as a
coroner by such authority.”
On the whole, there is little to criticise or attack in the
qualifications set out, though it might not be too much to demand eight
or ten years’ professional standing in the case of a solicitor, instead
of five. Indeed, it seems scarcely equitable to place a solicitor on
the same basis as a barrister or an especially highly qualified medical
practitioner, unless such solicitor has taken a University degree, or
has had to pass examinations of a more academic character than those
which obtain at present.
Section 7. “Every coroner’s district shall be provided by the
authority who appoints the coroner with suitable accommodation for
holding inquests, and with a coroner’s officer or officers and other
assistance as may be necessary for the proper carrying out of the
duties of the office of coroner.”
This provision sounds very well in theory, but are not most populous
centres already equipped with the necessary facilities for conducting
an inquiry? If any such populous centre exists which is not so
equipped, then the provision is most essential. But in outlying country
districts, to centralise the place of inquiry would involve carting
the dead body a great distance, to the probable discomfiture and
inconvenience of the surviving relatives. In average cases, there is no
special need to subject a dead body to more than ordinary scientific
investigation, as near the place of death as possible, to fulfil the
intentions of the law, and to have it tumbled across a county and back,
with incidental delays is, one may safely say, somewhat unnecessary,
if the natural feelings of surviving relatives are to be considered.
An ordinary country house is usually sufficiently well adapted for
the purposes of holding a _post mortem_ examination and a coroner’s
inquiry. The customary system of using a local inn is not altogether
bad, either, when it is remembered what a small number of inquests are
anything like necessary in country districts.
Section 9. “Notwithstanding anything in subsection (1) of section
three of the Coroners’ Act, 1887, a coroner after due inquiry into
any case referred to him may decide not to hold an inquest if he is
satisfied that the deceased died a natural death.... For the purposes
of an inquiry under this section, the coroner may order a _post mortem_
examination, and the cost of such examination, being such sum as the
Secretary of State may by regulation prescribe, shall be defrayed as if
the examination were made in connexion with an inquest.”
In section 10, there is provision for the appointment of standing
“medical investigators or pathologists” in each coroner’s district
to assist the coroner in his inquiries and inquests and to make
_post mortem_ examinations. The next section refers to the payment
of ordinary medical witnesses, as opposed to the coroner’s “medical
investigators or pathologists.” Section 12 of the Bill makes some
sentimental provision in connection with the coroner’s jury and the
question of “viewing the body.” It is of no great importance or
interest one way or the other. Section 13, on the contrary, is of
definite value from a legal standpoint. “Every coroner,” it settles,
“shall cause a record of every inquiry and inquest to be kept, and
shall transmit such record to the clerk of the [county] council or
borough council, as the case may be, and it shall become the property
of such county council or borough council, as the case may be, and such
record shall be so made and transmitted as the Secretary of State may
by regulation prescribe.”
In section 14, it is provided that “The Secretary of State may frame
rules and orders for regulating the procedure or practice of coroners’
inquiries and coroners’ courts, and forms of proceedings therein, the
fees to be charged for copies of depositions, records, or any document
in the custody of the coroner or the local authority, and any other
matter not regulated by statute on which it may, in the opinion of the
Secretary of State, be desirable to prescribe the practice of coroners,
and may from time to time amend such rules, orders, forms and fees.”
It is to be hoped that this section will be the means of establishing
the rules of procedure on an exact basis. Also, there is no reason
why the rules relating to evidence should not be applied with as much
strictness in a coroner’s court as in a Metropolitan Police court. It
is true that in numerous cases a coroner’s inquest savours more of a
_quasi_-scientific investigation than a legal inquiry, but it should
be borne in mind that it is primarily concerned in upholding the law
by checking or discovering crime. Candidly, a better appreciation of
this aspect of his functions would improve a coroner’s status among
legal practitioners. Whether a man died from cerebral hemorrhage or
syncope is really of little importance, provided he did not die by
some unnatural means. The everlasting verdict, “Death from Natural
Causes,” is far too frequent. Admittedly, where a medical practitioner
has refused to certify the cause of death, the coroner has in the past
been bound to order an inquiry, but in numberless instances the result
of a great deal of trouble has merely been a verdict of natural death.
Of course, this is not to be construed to apply to cases originating in
suspicion. Where there is suspicion, there should be an inquest. Where
there is no suspicion as a _raison d’être_ for an inquest, there should
be no inquest.[8] This would do away with hundreds of useless and even
expensive inquiries. The “medical investigators or pathologists” of the
new Bill should often be able to satisfy themselves, by the appearance
of the body and the circumstances attendant upon the death, without
having recourse to a _post mortem_ examination.
It might be fairer to the pathologists were they to receive a fixed
remuneration per annum, irrespective of the number of bodies subjected
to scrutiny or to internal examination. The remuneration could be
based on yearly averages, when the perfectly natural incentive for
an extra two guineas would be absent in deciding them in favour of a
_post mortem_ or against the necessity for it. It is not suggested
that a reputable pathologist would be much influenced by a trifling
fee, but where he is to receive payment for doing a thing, and nothing
for not doing it, he perforce does it. Then, too, where a person has
the power to decide whether or not the carrying out of a _post mortem_
is necessary, there is a tendency for him to give more attention to
all the various circumstances of the death than he might otherwise
feel himself obliged to do. A highly qualified man, with the power of
independent judgment, does not deliberately set himself a task unless
he believes its performance to be essential. By giving some such
power to the “medical investigators or pathologists,” a great deal of
superfluous work would be saved. The question of reducing every coroner
to a fixed salary--_i.e._, a salary not dependent on the number of dead
bodies on which inquests are held--would be a further advantage both to
the coroners and to the community. The system of so much per head per
corpse is obsolete; if it is not exactly obsolete, it ought to be so.
The second part of the Coroners’ Law and Death Certification
(Amendment) Bill is concerned with questions of death certification
and burial. Section 16 of the Bill, which is the first in Part II.,
sets out that “No death shall be registered under the Registration
Acts without the delivery to the registrar of a certificate of death
duly signed by a registered medical practitioner, or by a coroner,
after holding an inquiry or inquest.” The next section goes on to say
that, “Before giving a certificate of death, a registered medical
practitioner shall personally inspect the body and identify it as the
body of the person named in the certificate whom he has attended during
his last illness, and shall _certify to the fact of death as well as to
its cause_.” (The italics do not appear in the Bill.) Sections 18 and
19 are uninteresting, merely containing, as they do, particulars of the
form of death certificates and the method of filing the same.
Section 20. (1) “When the registered medical practitioner who attended
a person during his last illness is unable to give a certificate of
death, he shall forthwith notify to the coroner the fact of such death
with the reasons for his inability to give such certificate.” (2) “When
no registered medical practitioner has attended the deceased person
during his last illness, the relatives, friends, or other persons
having cognizance of the death, or of any doubtful or suspicious
circumstances attending the death, shall themselves report full
particulars thereof to the coroner.”
Section 23. “Every person who shall bury or otherwise dispose of any
dead body shall certify, by endorsement of the burial order (which
endorsement shall be in the form set forth in the Second Schedule to
this Act), the name of the place, the date, and the mode of burial,
or other mode of disposal of the dead body, and shall send such order
to the registrar of deaths in whose district the death was registered
within five days after such burial or other disposal of the dead body.
Such certificate shall, together with the certificate of death, or
finding of the coroner after inquiry, or verdict after inquest, as the
case may be, be entered in a book kept for the purpose, to be called
the ‘register of deaths and burials.’” Then follow penalties for
non-compliance with the regulations specified.
Section 24. “No person responsible for the burial or other disposition
of any dead body shall retain the same, or delay the burial or other
disposition of the same for any longer period than eight days after
death, except with the previous written consent of a justice of the
peace. Before giving this consent such justice shall be satisfied that
such retention or delay is reasonable, and the consent shall state
the period and grounds of such retention or delay. Any person who
fails to comply with the provisions of this section shall, on summary
conviction, be liable to a fine not exceeding _five pounds_ for every
day during which he fails to comply as aforesaid.”
Part III. contains one important provision. “Any dead child which has
issued forth from its mother after the expiration of the twenty-eighth
week of pregnancy, whether alive or dead, shall be the dead body of a
person within the meaning of the Coroners’ Act, 1887, and this Act, and
a person within the meaning of the Births and Deaths Registration Act,
1874.”
By the foregoing extracts from the new Bill, it will be seen that a
greater attention is to be paid to establishing _the fact of death_,
something which hitherto has been left to be implied from the nature
of the certificate. The intention of the provision is, of course,
excellent. It may even help to abate the nervousness of persons who go
in dread of burial alive. But its practical value will be dependent
on the precautions taken by the individual medical practitioner in
his examination of the corpse. The routine of examining dead bodies
becomes as commonplace as any other routine, and it might not be a bad
policy to include a provision for a definite test by which the medical
practitioner could finally _prove the fact of death_.
Cases of premature coffining may be extremely numerous or extremely
rare. It is a purely speculative question. There is, however, little
doubt that where a supposed dead body is left to the tender mercies
of funeral scavengers, few of these men would scruple to coffin the
same, though still animate, if the chance of discovery were remote.
And the chance of discovery would be remote--indeed, it might be quite
absent in nine out of ten such cases. Obviously, the most perfect way
to prevent premature coffining would be for the relatives or friends
of the deceased to retain possession of the body until definite
indications of decomposition or putrefaction were present. In many
cases, the eight days allowed under ordinary circumstances by the
new Bill would enable interested persons to secure evidence of this
character.
An advantage which England has over France lies in the fact that
in this country hasty burial has never been enforced. The climate
here certainly lends itself to a comparatively tardy process of
decomposition. In tropical countries, when a man dies his body is
buried or otherwise disposed of a few hours after death. In France,
unless special permission is obtained from the local authorities
(which involves having the body embalmed), it is usual to carry out
burial within forty-eight hours from the time of death. This applies
to the North of France, Normandy and Brittany, where hasty burial is
in no sense climatically necessary. But there are many other things
associated with French regulations regarding the dead which would not
find much support in this country. The grave lease, for instance,
which merely secures _temporary burial_, is one. A person dies and a
grave is leased for five years. At the end of the five years, the body
may be exhumed, and, for want of a better purpose, it is removed to a
factory where the residue of the decomposed flesh is boiled off, or
steamed off, and a skeleton is the result. The skeleton is afterwards
sold to the anatomical specimen dealer. As a regular traffic, the
whole scheme is odious and would not appeal to the legislators of this
country. Another French institution for the disposal of the dead is the
“funeral pomp monopoly.” A _concessionnaire_ obtains the right to bury
all the dead in a certain district, with the result that there is no
competition and no choice of undertakers or methods left to the person
who is responsible for the burial of a friend or relative. In Havre, in
Rouen, in Paris, these monopolies exist. One finds them in the smaller
towns, too, where the old peasant in the street feels distinctly
uncomfortable, on beholding the very men who will certainly pack him in
his coffin the moment he dies!
The employment of an undertaker is in no sense obligatory in
England, and an amateur funeral, needless to say, is just as legal as
a funeral carried out by Peter Robinson or Maple and Co.![9] There is
also no reason why the persons who die in a certain district should be
buried or cremated in that district. The law does not interfere with
sentimental preference. In England, the voluntary choice of burial
place,--means, method, etc.,--is legally sanctioned. To a material
mind, however, it is absolutely incredible how the people themselves
at this advanced epoch continue to employ the ludicrous top-hatted,
woebegone scarecrows, whose only function is to carry a piece of
furniture to a wagon, also equally grotesque in its appearance, and
a little later on to discharge the burden at a graveyard, a railway
station or a crematorium! The day of undertakers’ “mourners,”
desperate-looking hearse-drivers, and other _bizarre_ mockeries
connected with funerals, should be ended by the force of common sense.
The system continues through habit, through a certain repulsion
which many people have for giving practical thought to death and its
circumstances.[10]
FOOTNOTES
[6] See Appendix B.
[7] Mr. Chester’s italics.
[8] “The Isle of Wight Coroner to-day decided that an inquest was
unnecessary on Sir Alfred Lyall, who died suddenly at Lord Tennyson’s
yesterday. Sir Alfred’s medical attendant has certified that he
was suffering from angina pectoris. The funeral will take place at
Harbledown, near Canterbury.” From the foregoing paragraph in _The Pall
Mall Gazette_, April 11, 1911, it will be seen that the discretion
allowed the coroner has been well employed. Though Sir Alfred Lyall
fell down dead in his room, there was obviously no cause for an inquest.
[9] “The French have the reputation of being a witty people, but
although they have shaken off belief in revelation, they are to the
last degree credulous in other things. No invention, says _The British
Medical Journal_, seems to be too silly for a French paper to palm off
on its readers when it deals with English matters. Not long ago it was
gravely announced in a French medical journal that an English company
had been formed to work a patent for the installation of cremation
ovens in private houses.... Our contemporary, which professes to quote
from a circular issued by the new company, states that the apparatus is
therein described as ‘a gas furnace, low, but long and wide, covered
with a steel case, into which the coffin is introduced.’ The corpse,
it is said, is burnt in a few seconds. The oven must be heated an hour
beforehand. For those who do not happen to possess this convenient
arrangement among their household furniture, the company offers it
on hire. All one has to do is to telephone to the right address and
the company will forthwith send the apparatus with skilled operatives
to work it. The price of the whole apparatus is given at £90, and
the total cost of the operation as £2. But the company hopes that if
its affairs prosper it will be able to reduce the price. Here, says
our contemporary, is an idea which could only spring from the brain
of an Anglo-Saxon.... To this we reply that the idea, wherever it
sprang from, could only have been published in a French journal. This
suggested addition to the comforts of the English home opens up wide
possibilities. We are recognised as the pioneers of sanitation. Are not
our water-closets diffused throughout the civilised globe? The bathroom
has followed, though to a much more limited extent. A home crematory
would certainly have several advantages, alike from the sentimental
and the practical points of view. The crematory _à domicile_ would
sweep away once and for all the mourning coaches, undertakers’ men,
and all the trappings and ceremonies that make death hideous to all
but those ghouls who find an unholy joy in the last rites paid to a
defunct fellow creature.... With the home crematory available the only
funeral-baked meat would be the corpse of the deceased. Now that we are
told to lead the simple life, here is a way of getting rid once and
for all of one of the most artificial ceremonies of civilised life. A
crematory in the home would also supply to unscrupulous persons who
wished to get rid of inconvenient relatives an easy way of disposing of
the compromising remains. Lest the lively but simple-minded Gaul should
misunderstand us, we hasten to add the warning which Artemus Ward
found necessary for his readers, that this is a ‘goak.’”--_Pall Mall
Gazette_, April 15, 1911.
[10] It has frequently occurred to the writer, who has made a practical
study of such subjects, that the conduct and methods of persons who
traffic in the disposal of dead bodies should be brought into the
closer cognizance of the law. A regular system of police inspection
is required. The acts and omissions of the irresponsible scavengers
who thrive on burying the dead are often of such a character that the
law itself is infringed. A popular weekly paper contains the following
passage in its current issue:--“In one of the poorer districts of
Manchester the police have just found on the premises of a female
undertaker the bodies of nine children--all very young, seventeen
days being the oldest--waiting until the parents could secure the
necessary burial fees, to be buried. The remains were discovered in
an outhouse; and, impossible as it may seem, one body had been there
for two weeks.... On making inquiries, I find that there is nothing at
all unusual in this procedure. The poorer people are very sensitive
where their dead are concerned, and have a great aversion to what is
termed ‘a pauper’s grave.’ It is in times of trouble or death that
the real good-heartedness of the working-class shows itself. Directly
the neighbours learn that the house of someone in their midst has
been visited by death, a subscription is started. However, as they
are in receipt of only a meagre wage themselves, a week or so often
has to pass ere sufficient has been raised to satisfy the undertaker,
and apparently his premises are used as a sort of pawnshop for dead
bodies.... When a child has had a separate existence, the doctor
gives a certificate of death, and a _post mortem_ is not necessary.
Consequently, it is very doubtful if anything further will be heard
about the matter.”
The poor make, relatively, the easiest victims in connection with
funeral extortions. One hears of defunct costermongers being carted
to the grave in four-horsed hearses, etc.! A good example of funeral
extravagance is to be found in the subjoined paragraph:--“_Miner’s
Funeral Costs £40._--It was shown at Pontefract County Court, on
Tuesday, that the mother of a miner, just deceased, had spent £40 on
the funeral. This sum included £5 10s. for tea to 110 persons who
attended. There was also £10 for dresses, and the mother had borrowed
£16 to make other payments.”
It is interesting to note that there is no right of property in a
corpse. It is usual, however, for the executors of the deceased to have
possession of the body and to control the means and method of disposal.
CHAPTER III
WILLS
The will or testament of a man is one of the most important instruments
of the law, affecting as it sometimes does the disposition of immense
wealth, great estates, or other possessions. It is one of the simplest
things in the world to draw correctly, to execute correctly, and to
make binding on the successors of the testator. On the other hand,
there is nothing in the whole law more capable of signally failing
through some trifling omission.
People have a tendency to go to a solicitor for the purpose of having
a will drafted, but, while this is generally a good precautionary
measure, if the solicitor be a reputable member of his profession,
it is not altogether necessary. It is of no legal account whether a
testator writes out a holograph or gets someone else to draw up the
terms of a will for him. A typewritten document is equally as good as
either. The main points connected with the subject can be set out in a
few words. A testator must sign the will at the foot or end thereof,
or it may be signed by some other person in his presence and by his
direction; and such signature shall be made or acknowledged by the
testator in the presence of two or more witnesses, present at the same
time; and such witnesses shall attest and shall subscribe the will
in the presence of the testator, but no form of attestation shall be
necessary. Every will shall be construed, with reference to the real
estate and personal estate comprised in it, to speak and take effect as
if it had been executed immediately before the death of the testator,
unless a contrary intention shall appear in the will. No will made
by any person under the age of twenty-one years shall be valid. As a
general rule, every will made by a man or woman shall be revoked by
his or her marriage. All gifts or legacies by will to an attesting
witness, or to the husband or wife of such witness, or to any person
claiming under either of them, shall be void; but such witness shall
be admissible to prove the execution of the will. On the face of it,
these rules are easily grasped and easily conformed with, though the
slightest divergence from them, or an oversight, may prove fatal to the
validity of the will. For instance, it is of vital importance for the
testator to sign his will in the presence of the two witnesses, and
for the two witnesses to sign in each other’s presence[11] and in the
testator’s presence.
This particular formality is perhaps the most important of all, as
matters stand. An illustration will presently be given to bring this
fact out more clearly. Some effort will also be made to exhibit the
possibilities of injustice in connection with the execution of a will.
These “possibilities” have become “certainties” too often in the past.
Anomalies of the law can be found in hundreds of will cases, but the
writer is now chiefly concerned with exposing flagrant examples of
injustice arising out of a too strict regard for formality as opposed
to _intention_. Intention, too, is of great legal importance in many
directions, notably in crime, and, indeed, in the construction of
wills as well, but it is of little account if it is not supported
by the usual formalities of execution. Such matters come within the
jurisdiction of the Probate Court, the Divorce Court transformed for
the occasion. (The chameleonic complexion of the Probate, Divorce and
Admiralty Division of the High Court of Justice, has already been
touched upon.)
The primary object at present is to show, quite simply, the working of
the Statute of Wills, which came into operation January 1, 1838.
Towards the end of the month of March, not many years ago, _A_, the
son of _B_, was asked by _B_, his mother, to instruct a solicitor to
draft a will, leaving him, the son, all the real and personal property
of which she, the mother, died possessed, or which might fall in to
the credit of her estate. She told _A_--her only child (the offspring
of her first marriage)--that she had already provided for her second
husband, _C_, during the years of her married life. The son duly
carried out his mother’s request, though he had little suspicion that
her death was at hand. Nor had she, in spite of the fact that she was
supposed to be suffering from influenza, and had a nurse in attendance
at the time. In due course, the draft will was left at the house by
the solicitor. _A_ gave the matter no more attention, and for several
days received favourable reports of his mother’s illness, both from
her medical attendant, and from the trained nurse. On April 1st, an
ominous date, he called at _B’s_ house but could not see her. The
nurse, however, informed him that it was likely to be a long though
not a dangerous illness. This was at five o’clock in the afternoon.
At or about three o’clock the next morning, _B’s_ manservant arrived
at _A’s_ chambers with a summons for him to go to his mother at once,
as she was _in extremis_. _A_ hastened to dress, and, after a delay
in finding a cab--for the servant had come on foot through _C’s_
intervention, _though the distance was four miles_--he hurried to
his mother’s bedside. On arriving there, he found two nurses and a
doctor present. _A_ asked whether the will had been executed, and his
mother, who overheard the question, intimated that it was in a chest
of drawers. _B_ was then given the will; she struggled to a sitting
posture; the doctor handed her his fountain pen, but it was found to
be dry. _A_ then went downstairs to obtain some ink. On returning, he
discovered _C_, who had entered the room during his absence, standing
over _A_, with what was afterwards described in the Coroner’s Court as
a very menacing expression. _B_ held the pen and the draft will. In the
presence of the doctor and the two nurses, she made a frantic effort to
execute the document, which, had the pen been moist, would have borne
markings, but her last spark of vitality gave out before she could be
passed the ink. She fell back, whispering according to the evidence of
the nurse standing nearer to her, “Thank God it’s done!” She was dead.
Here we have a testatrix at the point of death, still conscious and
of perfect understanding, making a tragic effort to sign a will, in
the presence of three reputable and disinterested witnesses. _A_ and
_C_ can be left out of the question: they were interested parties; one
under the will, and the other against it. In the result, the efforts of
_B_, in her desire to secure her son in his natural rights, were quite
futile. The dramatic scene in the chamber of the dying might just as
well not have been enacted. According to English law, the will was not
worth the paper it was written on; in fact, it was no will at all, as
the pen in _B’s_ hand was dry. A peculiar injustice of the law, sorely
felt in the case illustrated (where almost the whole estate consisted
of personal property, _i.e._, stocks and bonds), lies in the fact that
a husband, be he first, second or third, takes his intestate wife’s
personalty absolutely, quite without regard to children of the marriage
or of a previous marriage. A married woman may leave a very large or
a very small estate in personal property, but if she dies intestate
it goes to her surviving husband. It was thought a great thing when a
married woman was first allowed to make a will as if she were still a
_feme sole_. It would be, if not a greater thing, at least a protective
measure where there are children, if the personalty of an intestate
wife did not go absolutely and unconditionally to her husband.
The facts relating to _A_, _B_, and _C_, can be supplemented by a
further illustration in connection with the law of wills.
It is in the nature of a sequel, for _A_ and _C_ are parties to
it, and probate of the will of _B_ is the question at issue. Two or
three years before her death, _B_ confided an envelope endorsed in
her own handwriting to her son _A_. This incident took place at a
fashionable French watering-place, just prior to the departure of
_B_ (_A_ was remaining on). The writing on the envelope, which was
sealed, announced that it contained “The last Will and Testament of
_B_.” _A_ threw the envelope, carelessly, into a trunk with a mixed
assortment of other papers. The trunk ultimately found its way to a
country place of which _A_ was tenant. It was then and there forgotten,
until the death of _B_ recalled the question of the endorsed envelope.
An anxious investigation ultimately brought it to light, when it was
found to contain a holograph will in the un-legal phraseology of the
deceased lady. It was signed and witnessed approximately in due form.
The signature of one of the witnesses was, however, that of the wife
of _C’s_ brother; the other was that of a servant in her employ. This
servant, who had subsequently married and disappeared, was traced, and
she forthwith made an affidavit that _B_ had signed the will in her
presence, and in that of the other witness; furthermore, that she, the
servant-witness, and her mistress, had both attached their signatures
in each other’s presence and in that of the testatrix. This was clearly
perfectly true. Steps were then taken to prove the will, but owing to
certain fictions on the part of the other side--statements that there
was still another will, etc.--it became necessary to prove the will
_in solemn form_. With the exception of an omission to appoint an
executor, the will was complete and definite in its wording. _A_ was
left everything. Unfortunately, twenty shares of stock, worth several
thousand pounds, were mentioned as having been given on a certain date
to _C_. Mention of this gift should not have been referred to in the
will, which was about six years old. It was clearly the confirmation of
a gift, so that it could be shown that _C_ had profited from time to
time to a considerable extent during his wife’s lifetime. Meanwhile,
during the six years which had elapsed between the making of the will
and the death of _B_, _B_ had exchanged with _C_ the stock referred
to in the will for other property of equal or greater value. When the
case got to the Probate Court, _C_, after taking action to obstruct the
free passage of the will by entering a _caveat_, agreed to withdraw
opposition if he were forthwith handed half the stock in dispute. _A_,
forced into a financial corner by an intimation that the wife (one of
the will witnesses) of _C’s_ brother would come forward and swear that
she and her servant were not both actually present together at the time
of the signing of the testatrix, was compelled to transfer the stock to
_C_. _A_ was granted letters of administration _cum testamento annexo_
(“administration with the will annexed,” which is the equivalent of
probate where no executor is appointed by the will). In this way the
matter ended. Had not the difficulty arisen of combating an attack on
the point of the combined presence of the witnesses and the testatrix
at the moment of signature, _A_ would no doubt have been left in
tranquil possession of what was after all his rightful property. This
apparently trifling detail compelling the presence of all three parties
at the time of signature is of enormous importance. The greatest issue
may hang upon it. The quality of witnesses is also not to be forgotten.
No one who it is intended shall profit under a will should be used,
for, though good as a witness, he or she is bad as a beneficiary.
Then, again, a person with hostile motives can always quite easily go
into court and swear that he or she was not actually in the room with
the testator when the testator and the other witness attached their
signatures. This was the suggested line in the case stated.
A probate action of some passing interest, owing to the notorious
criminal reputation of the testator, recently came before the Probate
Court, Sir Samuel Evans, the President of the Probate, Divorce and
Admiralty Division, sitting. The will of Crippen, the murderer, was in
dispute. It appeared that shortly before suffering the death penalty,
Crippen made a will, in which he left all of his property to the woman
Le Neve, or Neave. Her counsel contended that, until the applicant
representing the defunct Mrs. Crippen’s next-of-kin had conclusively
proved by admissible evidence the fact of the wilful murder of the wife
by the husband they could not oust the legal personal representative
from obtaining probate. Mrs. Crippen’s sister was the applicant, and
the application was grounded on the contention that Crippen was not
entitled to any benefit arising out of his own felonious act. (It seems
that the bulk of the property left by Crippen was personal property
which had come to him from his wife at her death--incidentally, after
he had murdered her.) Le Neve’s counsel argued that Crippen, as he had
suffered the extreme penalty of the law, was no longer a felon.
“The judge said that the court had, in special circumstances,
discretion to pass over a legatee. Crippen had been convicted of the
murder of his wife, the sentence of death was carried out, and there
were special circumstances in the case. Therefore, he (the judge) would
pass over the legatee of Dr. Crippen (Miss Le Neve), and grant letters
of administration to the solicitor of the sister of Mrs. Crippen (Mrs.
Theresa Hunn). Here the representative of a convicted felon claimed
to be entitled to the estate--her only claim being one resulting from
a felonious act. This was exactly as if Crippen himself had made the
claim. It was clear that the law was that no person could obtain or
enforce any rights resulting from his own crime; neither could his
representative. The human mind revolted at the very idea that any other
doctrine could be possible in the English system of jurisprudence.”
The judgment is interesting. It would in truth seem somewhat anomalous
for a man to be able to murder his wife, succeed to her property,
be convicted of the murder, and then leave such property to his
ex-mistress.
There has not been a great deal to bring out in this chapter, chiefly
because the points which have forced themselves upon the mind of the
writer are in reality few in number, though important in their results.
In drawing a will, it may be remembered, it is necessary to revoke all
previous wills, codicils, etc. It is essential that the two witnesses
and the testator should sign in each other’s presence.[12] It is also
wise to bear in mind that marriage revokes a will and that the personal
property (leaseholds, jewels, stocks, bonds, etc.) of an intestate wife
goes to her husband absolutely. The drafting of a will is one of those
things which could generally better be left to a reputable solicitor,
though a testator may, if he avoids ambiguous directions, do the work
for himself. The advantage in personally drawing a will lies in the
certainty of secrecy, something which is not always to be found in a
solicitor’s office. The witnesses should know that the document is a
will, and they should be carefully chosen for their purpose. Where
considerable property is at stake, it is frequently a great injustice
to let it pass under the rules which apply to an intestacy. The
anomalies of the law in this direction are more patent, perhaps, than
they are in connection with wills.
FOOTNOTES
[11] It seems that it is not always absolutely necessary for the
witnesses to sign in each other’s presence.
[12] If not always essential, it is desirable.
CHAPTER IV
LIBEL AND SLANDER
Little excuse is needed to touch on the law of libel and slander,
owing to the constant flow of diverting cases brought in connection
with this branch of legal activity. The King _v._ Mylius, arising out
of a personal attack on King George; Howard de Walden _v._ Lewis,[13]
an extraordinary instance of libel; De Forest _v._ Milner and De Forest
_v._ Lady Gerard (two actions for slander) were among the notorious
batch to be heard in the Royal Courts of Justice during Hilary Term,
1911.
There are many interesting points associated with libel and slander.
Even the purely technical aspect of the subjects is often entertaining.
Everyday life is full of slanders, perfect slanders too, many of
them, but they are frequently, if not generally, of a non-actionable
character, unless, of course, “special damage” protrudes itself into
the situation in point.
According to Mr. Hugh Fraser, an authority on the subject,[14] or
subjects, libel and slander are definable in this way: “A defamatory
statement is a statement concerning any person which exposes him to
hatred, ridicule, or contempt, or which causes him to be shunned,
or avoided, or which has a tendency to injure him in his office,
profession or trade. Such a statement, if in writing, printing, or
other permanent form, is a libel; if in spoken words or significant
gestures, a slander.”
“A statue, caricature, effigy, chalk marks on a wall, ‘signs or
pictures, as by fixing up a gallows against a man’s door, or by
painting him in a shameful or ignominious manner,’ may constitute a
libel.”
If a plaintiff alleges “that he is the person referred to as the
villain in a book or story which purports to be a work of fiction,
he must prove (_a_) that the author meant to refer to him, and (_b_)
that the work was so written that those knowing the plaintiff would
reasonably infer that he was intended.”
To say of a barrister that he knows no law is actionable _per se_.[15]
To impute incapacity to a journalist is also, it would seem, actionable
_per se_. “In accordance with the common law principle that husband and
wife are one person, ‘the uttering of a libel by a husband to his wife
is no publication.’ ‘For many purposes they are,’ however, ‘essentially
distinct and different persons, and, among others, for the purpose of
having the honour and feelings of the husband assailed and injured by
acts or communications made to the wife.’ Thus it has been held that
sending a defamatory letter to a wife about her husband is sufficient
publication.”
No action for slander will lie, without proof of special damage,
unless the words of the slander (1) charge the person slandered
with a criminal offence, (2) or where they impute to him a venereal
disease, (3) or where they are imputations against a man in his office,
profession or trade, (4) or where they attribute unchastity or adultery
to a woman. In all other cases of slander the plaintiff must prove
a definite temporal loss. The loss may be the loss of a client or
customer, or the loss or refusal of some appointment or employment.
The loss of a gift, whether pecuniary or otherwise, may be actionable,
or of gratuitous hospitality, “for a dinner at a friend’s expense is a
thing of temporal value.”
“Where the words are not _primâ facie_ defamatory, and where the
plaintiff therefore intends to maintain that the words were defamatory
by reason of their being understood in a special sense, he must be
careful to insert in his statement of claim an averment specifying the
defamatory meaning of the words complained of, and showing how they
come to have that meaning, and how they relate to the plaintiff. Such
an averment is called an _innuendo_.”
“It is no defence that the defendant uttered the words complained
of in jest, ‘for jests of this kind are not to be endured, and the
injury to the reputation of the party grieved is no way lessened by the
merriment of him who makes so light of it.’”
“Slander, as such, is never a crime, though the words complained of
may come within the criminal law as being blasphemous, seditious, or
obscene, or as being a solicitation to commit a crime, or a contempt of
court.”
“For words to be seditious they must be published with intent ‘to
bring into hatred or contempt or to excite disaffection against the
person of his Majesty, his heirs or successors, or the government and
constitution of the United Kingdom as by law established, or either
House of Parliament, or the administration of justice, or to excite
his Majesty’s subjects to attempt, otherwise than by lawful means, the
alteration of any matter in Church or State by law established, or to
raise discontent or disaffection amongst his Majesty’s subjects, or to
promote feelings of ill-will and hostility between different classes of
such subjects.’”
The late Sir James Fitz-James Stephen has some interesting conclusions
to draw as to what constitutes obscene matter in print. “A person,” he
states, “is justified in publishing obscene books, papers, writings,
prints, pictures, drawings, or other representations, if their
publication is for the public good, as being necessary or advantageous
to religion or morality, to the administration of justice, the pursuit
of science, literature or art, or other objects of general interest;
but the justification ceases if the publication is made in such a
manner, to such an extent, or under such circumstances, as to excel
what the public good requires in regard to the particular matter
published.”
In a criminal prosecution for libel, “it is not necessary, as in
the case of a civil action, that there should be publication in the
sense of a communication by the defendant of the words complained of
to some third party--it is sufficient if the words complained of be
communicated by the defendant to the prosecutor himself, provided that
their natural tendency is to provoke the prosecutor and excite him to
commit a breach of the peace.”
It is interesting to note that in printed libels, _i.e._, in
newspapers, books, etc., there is “a _primâ facie_ case of publication
against the defendant where the manuscript from which the libel was
printed is shown to be in his handwriting, there being no necessity to
prove that he expressly ordered or authorized the printing.”
The defendant was “held liable where the plaintiff told some friends
an absurd story about himself, and the defendant published it in his
newspaper, simply for the purpose of amusing his readers, and believing
that the plaintiff would not object.”
“The proprietors of a newspaper sued jointly with his negligent editor
and the author of the libel cannot obtain compensation from either of
them in respect of the damages which he has been obliged to pay to the
plaintiff; nor will the fact that there has been an express promise
to indemnify him if he will publish the libel in any may improve his
position, for such a promise is void, the consideration for it being
illegal. A printer cannot maintain an action for his charges for
printing a libel; and if he agrees to print a book for a certain price,
and finds in the course of his work that the book contains libellous
matter, he may refuse to proceed, and can sue for that part of the work
which is not libellous in an action for work and labour performed, and
materials provided.”
“Where the libel has appeared in a newspaper, difficulty is often met
with in attempting to ascertain the author of the libel, for an editor
will not, as a rule, give this information, nor is he bound to do so.
‘When a man went to an editor to ask for the name of an anonymous
correspondent, no blame attached to the editor for refusing to give the
name. Indeed, an editor would be almost mad to do so. I should blame no
editor for so refusing.’”--Baron Martin, cited in Fraser’s _Libel and
Slander_.
The majority of the foregoing paragraphs have been taken from Mr.
Fraser’s work, and, though they are submitted in a somewhat fragmentary
state, their interest is of a sufficiently general character, perhaps,
to warrant their inclusion here.
One of the most outrageous libels in recent years, was brought into
court during the Hilary sittings, 1911, when, before the Lord Chief
Justice and a special jury, Edward Frederick Mylius was criminally
indicted for libelling his Majesty the King. The actual printing of
the libel was carried out abroad, in the comparative safety offered
by the French capital. Edward Hilton James was the person chiefly
responsible for the offence. _Liberator_, a name one associates with
Jabez Balfour, the assassination of a Russian Emperor and various other
unsavoury events, was the title chosen for the organ in which the libel
appeared. The _Liberator_ libel on the King was wholly unjustified
from every conceivable standpoint. In the first place, had his Majesty
chosen to go through forty ceremonies of the kind so falsely alleged,
no one of them would have been legal, not even the first. The Royal
Marriages Act, Geo. III.,[16] makes it illegal for any member of
the Sovereign’s family to contract a binding marriage without first
obtaining the consent of the Sovereign, or, failing that, without
giving twelve months’ notice to the Privy Council. Marriage is a purely
legal tie, and if it does not conform with the requirements of the law
it must perforce fail. That is to say, there is no marriage where the
law forbids it. Obviously, had his Majesty chosen to go through any
ceremony of marriage without the sanction of the late Queen Victoria,
or, without giving twelve months’ notice to the Privy Council, such
ceremony would have been just as void as if it had never taken place.
This is merely the way the law views the contingency. In actuality, the
King never went through any form of marriage at all and the libel was a
cruel and a wicked one.
To be a popular or celebrated figure at the present day is to be the
target for every form of foul abuse, criminal concoctions and cruel
lies. Whether a person’s life is blameless or blameworthy, he only
has to reach a certain degree of public attention to be douched with
the vile outpourings of a cesspool, or blinded by the volcanic lava
of jealousy and spite. The individual who yearns for fame had better
first well calculate his power to endure its concomitants! To the
monarch, born to it, there is no choice. He must go ahead as best he
can, sickened with humanity, with his own troublous lot, almost envious
of the stagnant peace of obscurity, with its mediocre associations and
perpetual monotony.
The hare-brained pseudo-revolutionary responsible for the gross
writings in the Mylius case had the audacity to quote extracts from the
American Declaration of Independence,[17] and other historic documents,
to give the colour of respectability to his sewage rag. The present
writer descends from officers who took part in the American War of
Secession, the American War of 1812, and the American Civil War or the
War of the Rebellion, but he can find no common ground between himself
and the skulking anarchist who incited attacks on a harmless and worthy
monarch, to wit, King George the Fifth.
Mylius, the criminal indicted for the offence, affirmed the truth of
the libel in court, notwithstanding the evidence to the contrary of
witnesses of the best type. The marriage registers from Malta, where
Mylius stated the marriage of the King had taken place, were produced,
and, it is needless to say, no trace of any such marriage was to be
found. The twelve months’ imprisonment to which the prisoner was
sentenced was said by the judge to be insufficient. Indeed, it is an
anomaly of the law that such an inadequate punishment should be the
maximum assignable for the offence.[18]
After the sentence had been pronounced, the Attorney-General made the
following statement: “I hold in my hands at this moment a document,
under the hand of his Majesty the King, from which, with your
lordship’s permission, I will read. I am authorised by his Majesty to
state publicly that he was never married, except to the Queen, and that
he never went through any ceremony of marriage, except with the Queen.
And, further, that his Majesty would have attended to give evidence
to this effect had he not received advice from the Law Officers of
the Crown that it would be unconstitutional for him to do so. That
statement, my lord, is signed by the King himself.”
The Mylius-James concoction was of a particularly vicious character.
Had it been true, it would have left in the minds of ignorant people
the impression that his Majesty’s children were the issue of a morally
bigamous alliance. There is too much sedition-mongering already, to
fill the minds of the benighted classes with fresh forms of doubt.
Certainly, the King has enough to bear in the grave political unrest of
the period, without being besmirched and libelled in his private life.
As a last word on the subject of the King’s case, it is pleasing to
note that no member of the London Bar appeared for the defence of the
accused.
There is at least one anomaly in the law of libel and slander which
justifies the existence of this chapter. The publicity necessary to
vindicate oneself under present conditions acts as a deterrent to
many people in the prosecution of a libeller. The system of hearing
cases _in camera_ would be better adapted to the feelings of libelled
persons--those who hesitate to subject themselves to the bright blaze
of newspaper details--than the existing open court trial. There is no
reason why the scoundrel who libels a person should have the right to
fling fresh insults and fictitious statements at his victim in the free
atmosphere of a court of law--with the full knowledge that the case
will be reported in the press. The greater the lie the greater the
shrinking--from further publicity on the part of the victim. As matters
stand, a man can be prosecuted criminally for a libel, or he can be
sued for damages, or both. The form of a criminal prosecution most
recommends itself to the thinking mind, for the actual punishment of
the guilty must always be more satisfactory than the mere recovery of a
sum of money.[19]
Abuse, written or spoken, must not be confused with an actionable tort.
One is comparatively safe in describing a man in writing as a “dirty
scoundrel,” whereas it might be otherwise were one to allude to him as
a “vicious thief.” Some sense of proportion and an exact knowledge of
the use and meaning of words are useful possessions to the person of
violent temperament!
In Roman law, truth might be pleaded in justification of libel or
slander, at least in those cases where the public was interested in the
exposure. By the _Lex Cornelia_, it was made optional for the injured
person to proceed against the offender either civilly or criminally.
Truth is an answer to a civil action under the English law, but truth,
coupled with evidence of public expediency, must be taken as essential
in defence of criminal proceedings. Where, however, a man, actuated by
good faith in the pursuit of his own interests, libels another man, he
has a perfectly good defence. A certain individual who believed himself
to have been defrauded by the machinations of another, in connection
with a will, wrote to a third person for information. References were
made to the alleged fraud in the letter, which was published in the
press as part of the evidence at a coroner’s inquest. These facts come
within the meaning of the immunity above referred to.
It is possible, in this country, to libel the dead, _i.e._, where
the libel is calculated to cause pain to surviving relatives or
descendants. This is almost an anomaly, but it is a most proper one,
nevertheless! The maxim, “_actio personalis moritur cum persona_,”
applies, too, for no right of _action_ lies; the right to bring
criminal proceedings, is that intended by the reference.
FOOTNOTES
[13] This libel action was based upon the posting by the defendant
of two large boards (on his premises at the corner of Oxford Street
and Holles Street) bearing respectively the words, “16 and 17, Holles
Street, Lord Howard de Walden’s Monument of Iniquity,” and, “In
the Holles Street Drama, the young Baron is discovered behind the
curtain, pulling the wires for the imprisonment of his old tenant.”
The defendant admitted that he had nothing against the plaintiff
personally; he said that he wished to draw attention to his grievance
against the managers of the Howard de Walden Estate. In the result,
judgment was entered for the plaintiff.
[14] Dr. W. Blake Odgers, K.C., is the author of the standard work on
libel and slander.
[15] An insult to counsel may be punished as a contempt.
[16] See Appendix C.
[17] It may be noted that five of the signatories of the Declaration
of Independence were Middle Temple barristers: Thomas McKean,
Edward Rutledge, Thomas Lynch, Thomas Heyward and Arthur Midleton.
With the exception of the first-named, all of these gentlemen were
Representatives of South Carolina. Thomas McKean, by the way, wrote
the Constitution of Delaware in a night, while Edward Rutledge drafted
the greater part of the Constitution of South Carolina. The latter was
chairman of the Committee of Five who drafted the first Constitution of
the United States.
[18] “Edward Frederic Mylius is fortunate, living as he does in times
when justice is tempered by extreme leniency. In former times the Kings
of England had no lack of power in dealing with those who slandered
Royalty. To cite only one instance, King Henry the First had been
lampooned by a former friend, Luke de Barre, a troubadour knight. The
unfortunate man was condemned to lose his eyes on the scaffold by the
hands of the public executioner.
“Many intercessions were made in his favour, but the King
replied:--‘No, for this man, being a wit, a bard, and a minstrel
forsooth, hath composed many ribald songs against me and sung them
to raise the horse-laugh of mine enemies. Now it hath pleased God to
deliver him into my hands, punished he shall be to deter others from
the like petulance.’ It is not quite clear whether the sentence was
carried out as arranged. Some chroniclers assert that De Barre’s eyes
were in fact put out, and that he died of the torture, while others say
that he cheated the executioner by dashing out his brains against the
stone wall of his prison. In either case the incident shows that to
libel Royalty in the twelfth century was a perilous venture.”
[19] “Our legal system is apt to give wholly disproportionate
importance to a large class of libel and slander actions intrinsically
of small account. We provide first-rate machinery for the determination
of second-rate or even trumpery questions; disputes not much above the
level of those which a County Court judge settles once for all in a
rough and ready manner in ten minutes or a quarter of an hour. It is
true that there are libels of a cruel and malignant character, more
mischievous than most crimes; calumnies industriously circulated as to
the private lives of innocent men and women; fictions or distortions
of facts for which no punishment is excessive. For such libels the
criminal law is the proper remedy. But for a large mass of libels and
slanders which engage the time of High Court judges and special juries
the legal machinery provided, criminal or civil, is altogether out of
proportion to their importance.”--_The Times._
CHAPTER V
IMPRISONMENT FOR DEBT
Imprisonment for debt, laughable enough, perhaps, in an
eighteenth-century comedy, is something of an anomaly in the existing
state of justice. Some ten thousand persons annually go to prison for
debt, or, rather, for contempt of court, arising in connection with the
disobedience of an order of the court to pay a certain sum of money on
a judgment.
Of course, credit forms a large field for discussion. It is essential
in all communities, among all classes of the population. How it comes
into being and how it justifies its existence are questions of more
than ordinary interest. In the first place, a man who lives at the rate
of a thousand or two a year inevitably has credit given to him unasked.
It is a part and parcel of daily life, convenient, if not necessary,
in his case. Tradesmen are paid in the usual course of events and
matters go tranquilly onwards. If, by mischance, the source of his
income suddenly, unexpectedly even, comes to an end, how does he stand?
He may owe two hundred pounds or two thousand. His credit has merely
been the outcome of custom, usage, not of fraud, or of intention to
defraud. Had his intentions been fraudulent, he would have “pushed”
his credit far beyond the sum of two thousand pounds, which is merely
an extravagant sum for a man with an income ranging from one to two
thousand pounds _per annum_. But the two thousand pounds which he owes
are, through his abrupt loss of income, a grave menace. If the sum is
greatly divided up, his life may be made tormenting, for when a debtor
is in difficulties, though they may have arisen through no fault of his
own, it is the psychological moment for some creditors, most creditors,
to deluge him with writs and summonses--a senseless system in the
circumstances--and to pursue him with regiments of solicitors’ office
boys, professional debt-collectors and officials from the county court.
(The demeanour of these claimants generally savours of mixed brazenness
and terror, amusing to the debtor if his _sang froid_ is equal to a
little detachment! Carrion of the debt-collecting and process-serving
species is very human in its appreciation of “tips.” Indulgence in
pleasantry, too, goes a long way sometimes in gaining some petty
privilege!)
An instrument of the law known as the “specially endorsed writ”
(for sums of £20 and upwards) is quite pestilential to the victim
of credit. If the debtor happens to be in possession of a little
money, it only adds to his expense to “enter an appearance”; it is
usually better, therefore, to let the creditor “sign judgment” in due
course. Solicitors still glory in these writs: where the debtor is
likely to meet the obligation, an interesting little bill of costs
for doing virtually nothing also stands a fair chance of being met
without taxation. The costs are generally from three guineas to four
pounds in the endorsement on the writ, and they are apt to tempt the
person writted to send in a covering cheque for debt and costs, as
marked. Service is often effected by the office boy, so that, with the
exception of the stamp on the original writ, the expense is practically
nothing. In other words, the solicitor earns his three guineas too
easily, for there is a tendency not to tax such costs, which are unfair
to a debtor who is not particularly pressed for money, who means to
pay, and whose failure to do so has been due chiefly to oversight or
neglect.
We know that a debt of £50 is a basis for making a person bankrupt.
Consequently, the debtor whose funds abruptly cease may have many
trials to face with debts which only run to a few hundred pounds.
Furthermore, suppose some trifling debt--for ten pounds or so--is
pushed into a judgment in the county court. Later on it is matured by
the machinations of a solicitor into an order of the court for the
payment of so much a month. If the debtor is unable to meet the order
he may be committed to prison for contempt of court--arising from
disobedience to pay. Thus imprisonment for debt evolves itself.
The abolition of imprisonment for debt has frequently been discussed.
Many county court judges are against committals; some, of course,
remain in favour of them. Judge Henry Tindal-Atkinson, County Court
Circuit No. 58, was one of the witnesses to appear before the Select
Committee on Debtors (Imprisonment), Sessions 1908 and 1909. In his
evidence, the learned judge favoured the abolition of imprisonment,
which he considered generally oppressive, and particularly hard on
the working man, whom it placed rather at the mercy of the creditor.
“Credit he thinks pernicious,” to quote from the report of the Select
Committee, “and extravagant, from the necessarily high prices charged
by tradesmen, uncertain that they may not have to wait years for
their money. It is witness’s experience--which he illustrates by a
comparison of committal orders in different districts on his own and
other circuits--that extravagance increases in proportion to wages,
the working man in good times spending every farthing and leaving no
margin for present debts or future emergencies. Then in the case of
process, fees further increase the debt, amounting perhaps to 8s. 6d.
in a £2 claim. Witness favours abolition of imprisonment, and thinks it
would diminish plaints. He does not think committed debtors necessarily
dishonest.”
In the same report, Judge Henry Mason Bompas, of County Court Circuit
No. 11, expresses an opinion in conflict with Judge Atkinson’s.
“Witness opposes the abolition of imprisonment as likely to check
the credit required by the working classes, increasing its cost, and
leading them (the working classes) to treat their obligations too
lightly.... Witness is of opinion that imprisonment has not sufficient
terrors. To the Burnley colliers his Honour’s seven-day sentences
appeared so much in the light of a holiday above ground that he
has been obliged to increase them. He instances a case of a man in
employment doing his imprisonment by proxy, the unemployed substitute
receiving five shillings in solatium of the seven days. The efficacy
of imprisonment he deduces from the proportion of cases in which
committal orders produce payment. Witness thinks credit desirable
in certain cases, and that the question of tempting persons to it
applies to all classes of society.... With regard to proof of means,
witness says his practice is to accept arrangements between debtor
and creditor as evidence upon which to make an order, subject to his
knowledge of the creditor, as voluntary on the part of the debtor, who
has the opportunity of attending court and making his own statements.
In cases where no agreement is produced, evidence as to the man’s wages
is obtained from the employer upon a printed form, if the debtor does
not object. He alludes to the difficulty of ascertaining what a debtor
may be paying into court upon other debts (whereby, in fact, his wages
may not represent his income, in which case witness would regulate the
order accordingly), unless he appears.... Witness opposes a suggestion
that imprisonment be held to purge a debtor of the amount for which he
was imprisoned.”
Judge Edward Bray favours, in his evidence, the abolition of
imprisonment. He opposes “the present system as prejudicial to the
interests of the working classes on account of the enormous and
expensive and indiscriminate credit which they can obtain.”
Sir Kenelm Digby, G.C.B., at one time a County Court Judge on Circuit
No. 19, favours the limitation of the power of imprisonment, but he
considers its abolition impracticable as abolishing credit.
Judge Cyril Dodd, Circuit No. 16, stated in his evidence that he
desired the abolition of imprisonment for debt; he also recommended the
widening of the present definition of crime.
Judge John Gent, County Court Circuit No. 12, favoured, under certain
conditions, the abolition of imprisonment for debt. “He would retain
imprisonment for debt,” so the report goes, “in fiduciary cases and for
default by a solicitor in payment of money when he has been ordered to
pay the same, also for default in bankruptcy, taking other cases of
fraudulent debt into the criminal courts. He reprobates the payment
by results of registrars as putting an obstacle in the way of judges
who conscientiously try to restrict the issue of committal orders,
by placing them in an invidious position of responsibility for the
reduction of the salaries of the registrar and his staff. He instanced
his own feelings on finding that he had been the means of reducing the
salary of the registrar at Huddersfield £200 or £300.... He thinks
registrars favour the present system.... Witness disapproves of credit
as vicious, and unnecessary, even in bad times, when the poor, he
thinks, would be wiser to accept charitable assistance. He believes
credit to be mainly given on the power of imprisonment in reserve....
Witness thinks the requirements as to proof of means difficult to work
and unsatisfactory, the Court of Appeal having decided that ‘means to
pay’ are means to pay after the discharge by a debtor of his obligation
of family maintenance.”
Judge Henry Best Hans Hamilton, of Circuit 4, opposed, before the
Select Committee, the abolition of imprisonment, “as likely to swell
the numbers of improvident working men, and, by increasing the
difficulties of obtaining the credit necessary in bad times, throw
both the honourable and the improvident on the workhouse or parish at
such seasons. He considers execution against goods (generally claimed
by relatives or obtained on the hire system) useless against the
improvident or dishonest.”
Judge Arthur O’Connor, K.C., of County Court Circuit No. 2, “approves
the power of imprisonment as a necessary instrument in securing payment
of judgment debts which would otherwise remain unpaid.”
Judge William Stevenson Owen (now deceased), Circuit 24, favoured the
total abolition of imprisonment for debt, “save, perhaps, for damages
for tort.”... Further, “He would make default in a fiduciary capacity,
or by an attorney or solicitor, or default in payment for the benefit
of creditors of any portion of a salary or income, criminal misconduct.”
His Honour Judge Edward Abbott Parry, lately of Circuit 8, but now
appointed to replace the late Judge Emden at Lambeth, stated, when
giving his evidence before the Select Committee, that the present
system was to be disapproved (1) as favouring disreputable trade,
(2) as failing to punish dishonesty, (3) as a means of blackmailing
friends and relations of the debtor, (4) as injurious to the poor, etc.
He favoured the total abolition of imprisonment for debt, at least
theoretically. He added that he believed in credit as a necessary evil.
Judge Sir William Lucius Selfe opposed the total abolition of
imprisonment for debt so far as the working classes were concerned.
He made certain exceptions, however, in which he would abolish
imprisonment, notably in cases arising out of money-lending
transactions.
Judge William Wightman Wood, of Circuit 20, another witness, favoured
the abolition of imprisonment.
Mr. S. Savill, Chief Clerk at Marlborough Street Police Court, in
his evidence, divided debts recoverable before Courts of Summary
Jurisdiction into three classes: “I. Sums recoverable similarly to
civil debts summarily recoverable under the Summary Jurisdiction
Act, 1879, _i.e._, cases in which the County Court has concurrent
jurisdiction. In this class, a judgment summons necessitating proof
of means must precede committal, and imprisonment is rare. II. Sums
due under orders of the Court in cases of affiliation and maintenance
orders and orders against persons legally liable for contributory
maintenance of a child sent by the Court to a reformatory or industrial
school. In this and in Class III. imprisonment is punitive, and purges
the debt. III. Sums not recoverable under summary jurisdiction,
comprising highway rates, poor rates, etc. Here stipendiary magistrates
and ordinary justices have concurrent jurisdiction. Committals in
this respect scarcely affect the poor classes, who live in houses and
tenements for which the owners are, by consent of the local authority,
rated up to £20, the power possessed by justices and stipendiary
magistrates to discharge from payment any persons proving inability
to pay from poverty not being used in the opinion of the witness to
the extent intended by the Statute.”... Witness also suggested that
imprisonment “as a screw” was abortive, and really only partially
deterrent in its effect; he submitted, however, that if imprisonment
for debt were abolished, strengthening of the punitive law would become
necessary.
M. Maxime de Gorostarzu, a French advocate, Counsel to the French
Consulate-General, supplied the Select Committee with certain
information on the French law. To take an extract from the report,
“Witness states that imprisonment for debt in civil matters is not
possible in France, debts for goods supplied being only recoverable
by execution, nor does witness think its want is felt.” Imprisonment
for debt was suppressed by the Revolution in 1793, re-established
within the next two years, again suppressed in 1848, but re-established
once more. In 1867 “it was finally restricted, in deference to public
opinion.”
Mr. John Arthur Barratt, a member of the English Bar and of the New
York Bar, stated before the Select Committee that, generally speaking,
imprisonment for debt on civil process was impossible in the United
States, except in cases containing an element of tort or fraud. There
are, however, States in the Union in which imprisonment for debt
exists, notably in Massachusetts.
Mr. Peter Morison, a solicitor practising in the Scottish Courts,
stated, in his evidence, that imprisonment for debt was abolished
in Scotland in 1880, except for taxes, fines or penalties, rates or
assessment, sums decreed for aliment and _praestendum_ orders (_i.e._,
orders by a judge to perform an act).
Mr. Ernest Joseph Schuster, a member of the English Bar, and a Doctor
of Laws of the University of Munich, explained that the rules as to
imprisonment for debt on civil process were uniform throughout Germany.
“Imprisonment for debt _per se_ does not exist, but, by provisions of
the German law for dealing with mischiefs which might arise, debtors
may, for the protection of their creditors, be imprisoned.”
From the foregoing matter, which is derived for the most part from
the report of the Select Committee (constantly referred to in this
chapter), it will be seen that imprisonment for debt is by no means
generally supported, either by the judges themselves or by those
persons associated with judicial administration. Tradesmen of the
inferior type support imprisonment with fearful anxiety lest it be
abolished. To them, it makes a debt a lever for persecution. Indeed,
it is used as a method of _quasi_-blackmail against the debtor of
the lower classes. Take the unwary working-man in regular employ. He
contracts a debt--he may even be persuaded into it--and the first
thing he knows is its maturity into a county court judgment, followed
by an order to pay (so much at stated intervals until the debt is
liquidated). The man is informed that he will be sent to prison
unless he finds the money. He is thus coerced and terrified by the
debt-collector, until he suffers himself and those dependent upon him
to go without food to meet the payments. The menaces used to bring this
state about would not come within the meaning of blackmail, legally,
but they savour so strongly of it in practice that “imprisonment for
debt” becomes an injustice and an anomaly of the law. Imprisonment
for whatever cause and for whatever time is imprisonment, and in the
working-man’s mind lies the certainty that his employer, when the
latter hears of it, will discharge him forthwith. The tangled terrors
of his predicament are worked upon by the debt-collector, a person, we
may assume, of even greater persistency than his prototype who pursues
the debtor of the upper class.
The Select Committee, though it did not actually recommend the
abolition of imprisonment for debt, was only luke-warm in its
endorsement of the measure. Many county court judges state definitely
that they will not inflict the penalty, for that it is a penalty, and
a very serious penalty, cannot be gainsaid. It would be absurd to
suggest that all credit would fall apart in the event of the abolition
of imprisonment for debt. Indeed, except among the “instalment-system”
creditors who prey on the poorer classes, there is no reason to suppose
that credit would be affected to a material extent by such a change.
As a whole, imprisonment for debt can be labelled a legal fiction.
It is imprisonment for debt, and yet, more strictly, perhaps, it is
a committal for contempt of court. The terms in this respect are
interchangeable. The root of the trouble is debt.
“Under the (Roman) empire, every judgment required to be reduced to
writing, and signed by the judge. It was entered in a register, and a
copy was delivered to the parties. In the East, after Arcadius, the
judgment might be drawn up in Greek, but the use of Latin was retained
at Constantinople down to Justinian’s time.... After sentence, the
debtor was allowed thirty days for the payment of the debt under
the law of the Twelve Tables. At the expiration of that time he was
assigned to the creditor by the prætor, and was kept in chains for
sixty days, during which he was publicly exposed for three market-days,
and the amount of the debt proclaimed; then, if no person released the
prisoner by paying the debt, the creditor could sell him as a slave
to foreigners. When there were several creditors, the letter of the
law allowed them to cut the body of the debtor in pieces, and divide
it among them in proportion to their debts; but some writers contend
that the words _partes secanto_ are to be taken in a figurative sense,
as referring to a division of the price when the debtor was sold as a
slave.... The prætor allowed a delay of two months for payment of a
judgment debt; and Justinian extended the period to four months, both
to the defendant and his sureties, after which the debtor might be
imprisoned, not in the house of the creditor, as in early times, but in
a public prison.”[20]
One can scarcely leave a chapter on civil--as opposed to criminal
[law]--coercion, without some mention of the writ of _ne exeat regno_.
It has, perhaps, a certain distant relationship to “imprisonment for
debt:” “It sometimes happens (for instance, where a plaintiff is unable
to establish his case except upon the admissions of his adversary)
that a defendant may, by leaving the country and so putting himself
beyond the jurisdiction of the English Courts, seriously prejudice or
perhaps altogether defeat a just claim. To prevent such a miscarriage
of justice, suitors in the High Court of Chancery could for many years
before the coming into operation of the Supreme Court of Judicature
Act, 1873, apply for and in a proper case obtain a writ of _ne exeat
regno_, addressed to the Sheriff of the county where the party named
therein was supposed to be residing, and commanding him to cause such
party to come before him and give sufficient bail in the sum endorsed
on the writ, that he would not go or attempt to go into parts beyond
the seas without leave of the Court, and on his refusal or neglect to
comply with this demand to commit him to prison.... This writ, which
issued only out of the Court of Chancery or the Court of Exchequer
on its equity side, so long as it had an equitable jurisdiction, was
originally a high prerogative writ by which the Crown was enabled
to prevent any of its subjects from leaving the country when their
services were required in it. The writ was subsequently applied to
cases between subjects, and the principles which guided the Court in
directing or refusing its issue, became by degrees clearly defined,
so that Lord Eldon, L.C., said: ‘This Court, if not bound _ex debito
justitiae_ (and I do not say it is so bound), is bound in the exercise
of a sound discretion to grant the writ, if the case be a case in which
the writ ought to be granted.’... Again, ‘if the Court, having granted
time for payment of money, is satisfied before the time arrives that
the party is going abroad to prevent payment of the money, it will
undoubtedly interpose.’... Under the present practice, in order to
obtain the writ, the applicant must show (1) that the circumstances are
such that the Court of Chancery would have granted the writ, and (2)
that the case is one which falls within sect. 6 of the Debtors’ Act,
1869.”[21]
Imprisonment for debt is nearly as old as the hills--under the Roman
_régime_, as will be seen, it literally flourished--but it is not
wanted in this country at this time and by a fictitious process, too,
which is regarded with disfavour by many of the judges empowered to
employ it.
FOOTNOTES
[20] Lord Mackenzie.
[21] _Oswald on Contempt, Committal and Attachment._
CHAPTER VI
THE NEED FOR THE RIGHT OF PROPERTY IN SURNAMES
A very anomalous side of the law is to be found in connection with
the use of surnames: their variation, their complete change, etc. John
Smith may freely call himself John Montmorency or John Plantagenet,
or any other name in keeping with his fancy. He may even go a step
further, and call himself Baron Montmorency or Viscount, or Count, or
Marquis or Duke, or whatever else he likes. So long as the name and
title do not cause persons to give him credit which they would not
give him as John Smith, he is comparatively immune from the meshes of
the law. The whole question therefore evolves itself into a simple
issue--_i.e._, is the assumption of the title or surname with a view to
imposing on people, and does it in fact so impose upon them that they
are led to part with goods or money on the strength of the success of
the imposition?[22]
Many Jews and other aliens on becoming established in this country
drop their patronymics, which may end with a “stein” a “berg” or a
“ski” and call themselves instead, “Gordon,” or “Howard” or something
else equally reassuring. That such a loose state of affairs should be
permitted is an indirect incitement to fraud. Admittedly, “Cohen” or
“Solomon” is not, perhaps, an incentive, _primâ facie_, to business
relations, whereas “Harris” or “Langton” may be.
It is utterly iniquitous the way the family names of British peers
have been seized upon by the sons of Israel. One finds some of the
greatest names in the history of the country applied to the offspring
of Whitechapel. Some legal check is needed to prevent this, even where
no direct intention exists to commit a punishable fraud by means of the
fiction. It is not suggested that those Jews who have reached power in
England use their adopted appellations to carry on swindles. But it is
improper that they should prosper under the great name of some English
or Scottish ducal house, when they have never perhaps even so much
as lent money to its members in the junior line! Several peculiarly
flagrant instances of the kind suggest themselves to the mind. Great
dignity has sometimes been bestowed on the scions of a Hebrew house
whose adopted name has clashed unpleasantly with the noble name of
an historic family. Why a name like “Sowinski” should be replaced by
“Cavendish” one fails to see, particularly as a name carries with it
definable or indefinable, conscious or unconscious, associations, which
weigh.[23]
The offspring of the original “Sowinski” becomes “Charles,” or
“Edward,” or “George”--“George Cavendish.” Obviously, such a person
has reached a financial status far above interest in trivial fraud,
though his name is a constant fraud of sorts on some one, particularly
if he remains only a name--_invisible_! To descend to the lower
branches of struggle for gain by imposture, we find “Claude Churchill”
lending money, practically without interest, “Edwin Graham” giving
bank notes away on mere notes of hand, and “Hubert Douglas” most eager
to cash post-dated cheques, literally for nothing! It is incredible!
How a “Lazarus” can become a “Scott,” an “Aarons” an “Ogilvie,” and
a “Niemann” or a “Katz” a “Murray,” is far beyond reasonable process
of deduction! It is a gross anomaly of the law that it should be
tolerated. A High Court judge recently drew a limited parallel--the
assumption of noble names by money-lenders. “What’s in a name?” may
be asked by the illiterate or semi-illiterate man, and yet he is
as promptly influenced by it as persons to whom a name admittedly
suggests something tangible. In the case of “John Smith,” we have
a name which is not distinctive, which, indeed, must be confusing
and burdensome to its possessor. He may have a much larger banking
account than an individual of distinguished name and lineage, and,
if so, he is perfectly justified in using it to change his name to
“Boggs,” or “Hoggs,” or “Noggs” or whatever other name exists in his
maternal line. However lowly his origin, he should be compelled to
choose a name associated with his parentage. He should not be allowed
the option of assuming a high-sounding name to which he can lay no
claim. His choice should be limited to the names of his ascendants.
In this way, there would be some semblance of actual justification
for discarding a commonplace patronymic. The candidate for change of
name could effect his purpose by deed poll, an easy task involving
no proof of pedigree or gentle birth. Affidavit should, however, be
made that the name chosen, on the plan here suggested, was the name
of such and such an ascendant of the person making the change. This
would be an effort on the part of the law to reduce the system to order
and method. In the case of Russians, Poles, aliens of suggestive and
hideous surname, whatever change of name allowed to them, such change
should conform with their foreign origin. Provision for the infliction
of penalties for disobedience in this connection would help matters in
the right direction. The whole question may seem trivial, but from the
ramifications which spread out from the use of an _alias_ or fictitious
surname, much deception, or fraud, or improper profit almost amounting
to fraud, frequently, if not generally, results. This is stating the
case in a very mild way.
Establishing the identity of an alien in this country should also
be made easier by compelling every such person to produce documentary
evidence of his (or her) identity on landing, and to make such person
subject to interrogation or examination on the point at any subsequent
time. This is a side-issue; still, it is linked to the main question
here raised, namely, the chaotic laxity permitted, or, at any rate,
not prevented, with regard to the change of a person’s name. The
method of the deed poll, as at present applied, though preferable
to the impromptu nomenclature adopted by the criminal classes, is
certainly not above reproach. It allows too much license in the
choice of a name. Change of surname should, as already pointed out,
be restricted to cases where the claim to the new name is at least
colourable, _i.e._, permissible only where the name desired is the name
of an ascendant.[24] If some of these suggestions were carried out,
there would be no more mad hunts for practically anonymous criminals
like “Peter the Painter” and “Fritz,” the suspected murderers in the
notorious Hounsditch fiasco. The wonder is that no one has apparently
yet seized upon the feeble system or absence of system in checking the
rightful names of the inhabitants of these islands. Legislation for
the punishment of persons making an improper use of surnames would be
distinctly useful. There would be fewer Polish “Harrises” and Russian
“Montagues” or, indeed, “Montagus” (less the “e,” for in some cases
this further audacity has been exhibited), in England than there are
to-day. Even the descendants of these august impostors would tremble in
their boots! “Solomon” or “Aaronstein” or “Samuel” would also become
their appearance better in many cases! These remarks, though they
obviously refer to Jews, are not intended to offend respectable Jews
who courageously adhere to the ugly names of their ancestors. The Jew
who says he is a Jew and passes under a name properly associated with
the Jewish race calls for no rebuke, nor, indeed, for anything, very
often, except genuine admiration. It is the impostor, great and little,
criminal or merely falsely ambitious, who attracts hostile attention,
with some substantial justification, be it confessed.
With regard to the small fry of the improper hyphen, there is nothing
to be said. Thousands of persons use hyphens who, if they had any sense
of proportion or self-respect, would hastily discard such a laughably
inconsistent sham. Unless a hyphen expresses the legal joining of
two surnames, thus bringing together the pedigrees of two houses, it
conveys nothing but _bourgeois_ affectation and impudence. It is a
feeble fraud at best, scarcely worth condemning. Different causes bring
about the legal use of the hyphen. Sometimes, a rich father-in-law
without heirs male directs by his will that his daughter’s husband
shall, by Royal License, assume the additional surname, whatever it may
be, which becomes extinct at his (the father-in-law’s) death, before
or after his (the son-in-law’s) own name. In this way the hyphen comes
into being, and the name which would have perished is duly kept alive.
At other times, the additional surname of an ancestor, where that
ancestor bore a distinguished name, in the maternal line, is revived
by process of law on the voluntary initiative of the person desirous
of possessing the name. Thus, a person representing in his blood an
historic family through, for example, his father’s mother, may by Royal
License assume his grandmother’s maiden name, the more justifiably
if she was in the nature of an heiress or co-heiress of the house.
The name, of course, may be joined to the existing surname, before or
after, with a hyphen, or it may be taken alone in substitution for the
existing surname.
Reference has been made to the freedom with which a man may call
himself by any name, without legal formality, and to the equal freedom
with which an alien may discard his own name and by deed poll assume
the honoured name of a great English house. (Alas, the Royal Licence
has been used in at least one glaring instance, too!) It has also been
made obvious that such practices should be checked by definite legal
means.[25]
The countries where conscription is customary are well protected
against change of name abuses. Conscription would solve the difficulty
here; but there are ways and means of putting down a most iniquitous
practice, a criminal practice in its intent, more often than not, by
ordinary legislation. Actors and actresses could be exempted because
they do not appear to offend in the sense that the impostors condemned
in the foregoing remarks offend.
It so happens that a further judicial allusion, as to the wrongful
assumption of great names, has been made, and duly reported in the
press. “As usual on Saturday,” says the report, “a number of short
cause actions, generally of a money-lending character, came on for
hearing, in Mr. Justice Darling’s Court in the King’s Bench Division
yesterday. One of them involved considerable argument upon a point of
law with reference to the passing, by a bank, of a cheque, which, it
was alleged, had been altered by the addition of the word, ‘Limited,’
to the plaintiff company.
“Counsel: ‘But at the time the cheque was drawn the plaintiffs were
not a limited company, and the title therefore was not their real
title.’
“‘Oh,’ commented Mr. Justice Darling, ‘such a thing does not surprise
me. I sit here on Saturday and hear all sorts of persons called
Fortescue, Plantagenet, Egerton, and so on, but those are never their
real names. You must not think that on Saturdays I expect people to
give their real names here, because I don’t!’
“His lordship was obviously referring to certain money-lenders whose
registered trade name, as distinct from the name of their parents, has
already given rise to judicial comment.
“The decision eventually went in favour of the defendants, who had paid
the cheque to one of the plaintiffs.
“There was considerable disturbance in the passage of the court when
another case was called, some litigants leaving the court, and others
hastening to the vacant seats.
“A witness named Fitz-Clarence was called in another case.
“‘Quite a Saturday name,’ observed counsel.
“‘All the Burkes and Debretts come here on Saturday,’ replied his
lordship, amid laughter.”[26]
Casual mention has been made of actors. Of those well-known, Henry
Irving was born Brodribb; Herbert Tree, Beerbohm; while George
Alexander’s surname was Samson. In no one of these instances was a
great family name improperly assumed, and it stands to the credit
of these theatrical leaders that such is in fact the case. There
are several persons on the English stage who are perfectly entitled
to describe themselves by well-known names. Lord Rosslyn, Lord
Yarmouth, Lord Dangan, Lady Constance Richardson, and the Hon. Helen
Douglas-Scott-Montagu, are among the number. Mr. Adolphus Yane-Tempest,
also distinguished in the theatrical world, is a Londonderry, while Mr.
Cosmo Gordon-Lennox, one of the Richmonds, is another actor entitled to
a distinguished name.
Constant use of a name is said to impart some element of right to
the name so used, but unless the deed poll is brought into operation,
one might reasonably suppose the name in question to be subject to
attack as an _alias_. Writers are given to the assumption of the
_nom de plume_. Beaumarchais, the hardy author of _Le Barbier de
Seville_ and _Le Mariage de Figaro_, was originally Caron by name,
but there is reason to believe that he became “De Beaumarchais”
by legal process. Some people even suggest that “Shakespeare” was
an _alias_ for Bacon! Many instances have occurred where writers,
distinguished and otherwise, have adorned their work with fictitious
names. Modern examples pass through one’s mind in dozens, but the
persons forming them have not gone to the extremity of using their
_noms de guerre_ in private life. Sometimes two people, prominent
in different spheres, bear the same combination of names, where the
names are not particularly commonplace. There is a novelist, of some
reputation in America, who like the present Home Secretary, is known as
Winston Churchill. As the Home Secretary’s “Winston” is derived from an
ancestress who married into the house of Marlborough, it is difficult,
without guidance, to see how the American novelist derived _his_
“Winston,” for “Winston” is said to be his name.
Juggling with names should be made a punishable deception. There are
exceptional circumstances, already roughly outlined, which warrant the
legitimate assumption of a name, justly celebrated, perhaps, where
it is represented in the blood.[27] Cases of the kind do not come at
all within the intention of these remarks, which are directed against
foolish or fraudulent persons who have no colourable right to the
names they assume. These offenders should be properly labelled by the
law, and not by the vagaries of aspiring imaginations or criminal
subterfuges.
FOOTNOTES
[22] “Application was made at Clerkenwell, to-day, for process against
a man calling himself ‘Viscount Mackenzie,’ for deserting his wife
and for obtaining credit by false pretences from his landlady, Mdme.
Gabrielle Suffolk, of Ampthill Square, St. Pancras.
“It was stated that the man had represented himself to be ‘Viscount
Mackenzie, of Mackenzie, in Ross-shire, Duke of St. Omars (a
surgeon-general in H.M. Army).’
“Mr. Bros heard the wife first.
“‘Viscountess Mackenzie,’ as the landlady called her, said she was
married to the man on January 7th, and he left her ‘four weeks to-day.’
“_Mr. Bros_: ‘Do you know his address?’--‘No, sir.’
“_Mr. Bros_: ‘Then I’m afraid I cannot help you.’
“The magistrate then called the landlady.
“She said she knew the man as ‘Viscount Mackenzie,’ and the wife as
‘the Duchess.’
“_Mr. Bros_: ‘You didn’t believe that, did you?’
“_The landlady_: ‘He said he was a surgeon-general in H.M. Army, and
would get his pension at the end of the month.’
“It was stated that the ‘Viscount’ had left his will behind him, and
the magistrate remarked that that did not help him.
“This will was produced in court the previous afternoon, when the wife
summoned the landlady for detaining her property, and stated that her
noble husband had induced her to part with all her money. The will gave
and bequeathed to ‘the Viscountess’ £6,000 a year for life and ‘all the
family plate.’
“On the sworn evidence of the landlady, a warrant was
granted.”--_Evening newspaper._
[23] “Noblemen, and their children, carry about with them, in their
very titles, a sufficient notification of their rank. Nay, their very
names (and this applies also to the children of many untitled houses)
are often, to the English ear, adequate exponents of high birth, or
descent. Sackville, Manners, Fitzroy, Paulet, Cavendish, and scores
of others, tell their own tale.... Such persons, therefore, find
everywhere a due sense of their claims already established, except
among those who are ignorant of the world, by virtue of their own
obscurity.”--De Quincey, _Confessions of an Opium-Eater_.
[24] Or where the change is to be effected by Royal License, when the
assumption of the name and arms might be prevented.
[25] A solicitor on the Rolls cannot change his name except by
the leave of the Master of the Rolls, who requires either a Royal
License or a deed poll enrolled plus advertisements. (A note by Mr.
Cozens-Hardy, the well-known barrister, who is, of course, the son of
the Master of the Rolls, the Right Hon. Sir Herbert Cozens-Hardy.)
[26] Sunday newspaper.
[27] Mr. Samuel Beach Chester is the only child of the eldest
(married) son, the late Captain Paul Townsend Jones, Jones’ Independent
Battery, Pennsylvania Artillery, of the late Rev. Samuel Beach Jones,
D.D., of Bridgeton, New Jersey, a trustee of Princeton University, and
a graduate of Princeton and Yale, who married the eldest child (all
daughters) of the Rev. John Chester, head of the Wethersfield branch of
the Chesters of Blaby in Leicestershire. The Chesters of Wethersfield
stood at the head of affairs in Connecticut in the 17th, 18th, and
(early part of the) 19th centuries. By order of the New York Supreme
Court, 1901, Mr. Chester assumed the maiden name of his grandmother,
Sarah Ralston Chester. Mr. William Chester represents the junior male
line and Mr. Beach Chester the senior female line, genealogically, at
the present time. The Chesters of Wethersfield, Connecticut, are not
related to any other family of the same name established in Connecticut
or elsewhere in the United States.
CHAPTER VII
LITERARY CENSORSHIP
There seems to be some need for the revision of the law applied
to literary productions. The subject is a peculiarly important one
to writers, printers and publishers, and, to a lesser extent, to
the public at large. When a publisher undertakes the publication
of a novel, for example, he involves himself in a liability for a
considerable sum for its production. The unknown writer may, by a
certain contributory process, bear a part of the burden borne by the
publisher. Only the writer with a name of one sort or another, or with
a certain circulation, can reach the stage which confers the advantage
of publication for reward. The publisher has his difficulties to
face in securing the services of a writer of this class, and, when
these difficulties have been overcome, he has the financial burden of
production to confront. This burden is in itself reasonably heavy,
with the result that he has to be most careful to avoid publishing any
matter, which may be condemned by the authorities as “indecent.” There
is something to be said as to what constitutes indecency, of course,
and this very uncertainty makes the publisher’s _métier_ the more
trying. It is more than trying; it is unfair.
The translated works of Marcel Prévost, a writer of genius, a member
of the Acadèmie Française, have been suppressed time and time again.
Théophile Gautier, Émile Zola, Guy de Maupassant, Gustave Flaubert,
and many other writers of the first water, have had the English
translations of their works suppressed. Admittedly, the freedom with
which sexual relations are dealt with by these writers has sometimes
been construed into indecency in this country. Certainly, the
translations, or many of them, are inferior in workmanship, and lend
themselves to condemnation by their very crudity. However this may be,
it is perfectly obvious that the legal method of dealing with indecent
or questionable literature is thoroughly inadequate, uncertain in its
effect, and needful of drastic improvement. That is to say, primarily,
a definite protection and security should be provided for the publisher
against loss arising out of the suppression of his publication. It may
be said, with partial propriety, that the best way for a publisher
to protect himself is not to publish _risqué_ works. But it must be
remembered that a publisher is not necessarily an expert on what
actually constitutes legal indecency, nor are his readers or advisers.
To be able to judge with some exactitude the decency or indecency of
sexual problem novels requires both legal and literary skill It is not
always so, naturally, though a certain number of works of literary
merit demand a high sense of discrimination in deciding their moral
limits. It is not precisely the immorality of a book which settles the
question: it is rather its treatment. There are many gross novels,
written by persons of inferior education. No doubt can exist as to
their indecency. But the publisher, perhaps, who undertakes their
publication, is merely careless in his methods. It is his duty,
indubitably, to take reasonable precaution; having failed to do so,
his position is a bad one. He may be prosecuted, committed for trial,
and imprisoned or fined, along with the printer. He also has to bear
the loss of production, a consideration in itself, as stated. His
“suppressed” novels become unsaleable at once.
A recent case at Bow Street Police Court was in a sense interesting
from the legal standpoint respecting indecent books. A prosecution was
started against the wholesale distributors of certain objectionable
novels, the work of an anonymous writer. The identity of the publisher
was not disclosed on the title pages of the books, nor did the
printer’s imprint appear. The distributors, therefore, stood _in loco
parentis_. They were mulcted in fines and costs to the extent of about
£400. The novels seized were ordered to be destroyed, as a matter of
course.
The technical basis for fines on such a scale was the absence of the
printer’s imprint--a legal necessity. The penalties attaching to an
infringement of the law on this subject make it worth the while of
every person responsible for the production of a book to preclude the
possibility of an oversight. Certainly, it may be assumed that the mind
of the magistrate was (in deciding the case above referred to) largely
influenced by the gross character of the books. Nevertheless, the
printer’s imprint should always appear.
By an anomaly of the law, a writer is not liable for the indecent
contents of his (in the recent case at Bow Street, “her”) books. That
is to say, so long as they do not constitute a libel upon someone. The
brunt of the trouble falls upon the printer and the publisher, more
particularly, in practice, upon the publisher.
One point which must strike the mind of any person interested in the
examination of books for publication is the very proper hostility of
the magistracy towards books, however excellent in literary quality,
which touch upon unnatural offences. In a novel of some merit--“_The
Hazard of the Die_”--a veiled suggestion, very veiled, it seemed,
of an unnatural association, ran through a portion of the book. It
was suppressed by the authorities, though it bore the imprint of a
respectable publisher.
Writers are at present hampered and restricted in the treatment of
ordinary sexual relations by many of the more important subscription
libraries. A writer has to consider his publisher, and the publisher
has to give some thought to his market. What has sometimes been
described as “the library ban” curtails the field of description to a
greater extent than the public authorities.
Whether or not all these bulwarks improve or protect the morals of the
kingdom is a moot question. To the ruthless mind, they seem to savour
of excess. Why any one body of persons, of no particular qualification,
should decide what is good and what is harmful for another superior
order to read is fantastic and even stupid to a degree. This
_quasi_-censorship may be beneficial in theoretically protecting the
young and innocent mind from coming into too early contact with pages
from life, but it is hardly considerate of those maturer readers
who may be anxious to be drawn from their own _ennuis_ by the light
treatment of other people’s. The suppression of all printed matter
relating to sexual difficulties, from divorce reports to novels and
plays, from classics to social memoirs, might tend perhaps to check an
increase of knowledge in the very young, though as long as we are human
beings and not metallic automata it may be presumed with some safety
that sexual relations will scarcely become extinct! Why the adolescent
mind should have to be rescued from a problematic contact with certain
printed matter, when, _per se_, proper upbringing should turn it
against depravity, one almost fails to see.
Of course, questions of morality and immorality have their degrees.
For instance, the most ardent supporters of freedom in connection with
literary works would not be able to give countenance to such gross
indecency as that exhibited in John Cleland’s notorious book. There are
similar publications, secretly distributed at the present day, which
would revolt the most worldly libertine.
Indeed, the dissemination of descriptive debauch should not stand
on a legal par with the publication and distribution of ordinarily
indecent books, such productions, for instance, as those named in the
recent Bow Street case. With regard to these latter publications, all
of which, in their original state, were examined and condemned by
the present writer, prior to the police prosecution, crudity of tone
and workmanship were as conspicuous as defective decency. The novel
translated from the French of Marcel Prévost was almost as careless
and rough in its finish as the English novels which fell under the
destruction order at the same time. Though all of these publications
were in places definitely indecent, unquestionably so, they did not
approximate the filth which finds a more secret means of distribution.
Undeniably, it is extremely difficult as a rule to obtain information
which will reasonably lead to a conviction. Much the same may be said
in connection with the sale of indecent photographs, “pictures,” etc.
This disgusting traffic appears to exist, if it does not actually
thrive. An alien, one of those aliens clothed in the name of “Harris,”
as it happened, received a sentence of three months’ imprisonment, to
be followed by deportation, from the Common Serjeant in February, 1911,
for selling indecent photographs. Cases of the sort arise from time to
time, but it may be assumed that the majority of the offenders escape
scot free, for the simple reason that they do not get “found out.” The
topic is not sufficiently interesting or important to warrant further
notice.
What actually concerns writers, publishers and the public at the
present time is the betterment of the system of freely circulating all
books. This may be taken to refer, not to the “library ban,” which is
influential only from the financial standpoint, but to the application
of the law controlling questionable literature.
The police authorities scarcely indulge in wild hunts for the ghosts
and goblins of indecency until their attention has been very definitely
drawn to the existence of a likely field. That is to say, complaints
come in, and in certain cases they are gone into, with the result that
a prosecution ultimately follows. There are, perhaps, plenty of people
who spend their time in searching for indecent paragraphs in trumpery
novels. It is on their initiative that the police are compelled to
have the works complained of examined, and, if the same are found
to be strong enough to support a prosecution, a prosecution is the
result. Now the whole machinery associated with such a prosecution is
cumbersome, variable and unsatisfactory. The most choice work of genius
may fall under the same axe as the literary outpourings of a woman
better adapted to the _métier_ of a _cuisinière_. It is the difference
in quality and the similarity in fate which demand criticism. The
police defence would be that there exists in the works of both types
the common fault of indecency. (The word “police” is used for want of
a better descriptive title for the persons actually engaged in the
examination of questioned publications.) That may be true enough.
Suppose, however, that a worldly magistrate chooses to discriminate,
suppose also that he is fortunate in having some tangible ground for
doing so, the decision of the case must tend towards the support of the
able writer and the condemnation of the material produced by the writer
whose _raison d’être_ is base.
Setting aside all question of literary values, there is one notorious
novel which seems to be as indecent in some places as the novel
“According to St. Paul.” The former--it must be left nameless here--was
sold openly for several years in London, and, so far as one knows, is
still sold openly. The latter, in its original form, at any rate, was
extinguished twice over at Bow Street. Now the distinction between
the two novels lies almost wholly in the quality of the writing. If
this question of quality were to rigidly decide the result of every
prosecution, there would be no need to say any more. But it forms
an untrustworthy precedent, battered down in dozens of other cases.
Consequently, the pursuivant of letters is left confronted by doubt
and uncertainty. If he be endowed with skill, he is forced to use such
skill in evading much which may be artistic and human in its import.
He must treat his subject with great circumspection, hamper himself
at every point, and leave his best efforts untried. For, after all,
“best efforts” in the writing of novels are often those produced by
the treatment of passion, not necessarily indelicately. Passion is,
however, a pitfall to the English or American novelist.
A writer who knows “things” has a better chance of escaping difficulty
than one who flounders into print on a meagre social knowledge. This is
the utmost that can be said, and it is not satisfactory either to the
writers themselves, or to the publishers. In short, what really seems
to be needed is a system of censorship. It would protect publishers
and printers, and save writers some anxiety. It should, perhaps, take
the form of a small department, non-political in character, with a
staff of qualified persons, whose duty it would be to read and “pass”
or “reject,” subject to alteration, all manuscripts submitted by
publishers.
The censorship should not be constituted for the purpose of greatly
restricting freedom of expression, but, rather, only to check gross
license, with impartiality. Dramatic works might be dealt with by the
same authority as novels, memoirs, and other classes of literature.
Unless the whole scheme of a novel were to run on some revolting moral
question, it should not be condemned by the censorial authority, but
only those portions of it, individual words, lines, paragraphs, or
pages, impartially judged to offend. Once the work submitted had been
passed, subject to the deletion or alteration of condemned passages,
the possibility of a later questioning should be denied. In this way,
the irresponsible fanatic, who now acts as a police irritant or goad,
would have to turn his attention to other spheres of activity. The
existence of the censorship would therefore perform several services.
It would supply publishers and printers alike with definite knowledge
as to their immunity from legal attack. It would serve the purpose of
a barrier between the public and the publisher of obscene or indecent
or blasphemous prints. It would supply a certain sense of security to
the writer, whose copyright royalties are, under present circumstances,
frequently in danger. It would also relieve the magistracy and the
police from a comparatively trivial, though time-filling branch of
work. Some utility of purpose would also be fulfilled where plays are
concerned.
A great deal of gratuitous newspaper advertisement recently attached
to the writer of a play, which was refused the license of public
performance by the Lord Chamberlain. The whole disturbance was idle
enough in its effect, though it helped to recall the existence of the
Examiner of Plays--a person deputed by the Chamberlain to carry out the
work of censorship in practice. Political reasons were said to have
actuated the refusal of a license to produce the play. Such reasons
could also be made the basis for similar refusals (in connection
with dramatic productions, at any rate) on the part of the censorial
authority here advocated.
A censorship would free from the shackles of doubt and uncertainty all
those persons who contribute to the production of a book. An author
would know that at worst his writing was liable to expurgation. In
practice, this could even be carried out by the author himself, in
accordance with the directions supplied by the censorial authority. The
re-submission of the MS. to such authority would mean nothing more than
a further delay, of scant importance alongside the sense of security
afforded by the process.
On the whole, there can be no argument against censorship as strong
as the argument in favour of it, and that is the grossly inconsistent
method of dealing with _risqué_ literature at the present day.
CHAPTER VIII
CAPITAL PUNISHMENT, MURDER AND SUICIDE[28]
Murder, which is the summit of evil-doing according to human canons
is at the same time the most natural act in the world. The so-called
“unwritten law” which weighs up the evidence in favour of a man who
kills his wife’s lover, is not without justice and a sense of fair
play. In England, there is plenty of unwritten law, but it has nothing
whatever to do with the _crime passionel_. However, if _A_ enters the
bedroom of his wife and discovers this unfortunate woman with _B_, _in
flagrante delicto_, to misuse an expression, and he shoots _B_ on the
spot, he stands a very good chance of escaping the supreme punishment
of the law. But if _A_, on seeing his wife in the act of adultery
with _B_, leaves the room, goes downstairs, obtains possession of
his revolver, and then returns to kill _B_, the position is somewhat
different. This particular example supplies evidence of _mens rea_, or
criminal intent. _A_ is not acting in a spontaneous fashion, for he
deliberately goes away and then returns, with murder in his mind. In a
good many parts of the world, either way would be justifiable, and, one
must admit, with some reason.
There is nothing more far-reaching than adultery in a married woman.
Her future offspring may not be that of her husband, and, at best, he
believes her body to be tainted with a poisonous contact. The real
idea of marriage is to keep one woman exclusively for one man, by whom
it is intended she should fulfil the functions of maternity. To have
suspicion of outside intercourse is to destroy everything which is most
profound in the union.
It is usual to divorce a wife who commits adultery, in England: to kill
her lover and to ostracise her from her home are methods left to other
races.
In America, the Thaw case, which attracted more interest than the
facts deserved, was treated in an ultra-civilized manner. Perhaps, if
the events associated with this _cause célèbre_ had taken place in
another State of the Union the results would have been different. It
is true that the relations between Thaw’s wife and White, the murdered
man, had not been resumed after the marriage, though the incidents
immediately preceding the shooting at Madison Square Garden should
have gone a long way towards saving Thaw. Thaw was dining at the Café
Martin, a well-known restaurant something after the type of the Café
de la Paix. His wife, the former victim of White, was with him. White
entered the restaurant and proceeded to make offensive remarks from an
adjacent table. Thaw, no doubt excited by alcohol, was very properly
incensed. Later on, after the incident had preyed on his mind, he
pulled out his revolver and shot White dead. This was at the Madison
Square Roof-Garden. If White had not made offensive remarks at the
expense of Thaw and his wife at the Café Martin, it is most improbable
that any shooting would have occurred. But what with Thaw’s knowledge
of White’s intimacy with the girl in her early days, and the fact that
the offender used it as a taunt in a public place, there is little
wonder that the _dénouement_ was murder. The strict critic may say that
Thaw should not have made such a marriage.
The instinct to kill in a man confronted by another who has been
intimate with the woman who became his wife must be very strong,
particularly among heated temperaments. It is not necessary,
one may perhaps assume, to have “brain storms,” paranoia, or
incipient insanity, to produce the exact state of mind, under given
circumstances, which prompted the shooting at Madison Square Garden.
One somehow feels that injustice has been done the “murderer” by
stamping him with the brand of lunacy. It was the only alternative,
however, as the case went, to the electric chair.
The system of electrocution, meted out to murderers in the State of
New York, is about as bad, or even worse, than hanging, with which it
is intended to deal briefly in the present chapter. There is nothing to
be said against capital punishment, at least on the part of anyone who
has examined the question in practice, but hanging as the means is an
antiquated survival of the witchcraft age (though one vaguely remembers
that “witches” were burnt!).
The French guillotine is a cumbersome contrivance, involving the
employment of an expert manipulator, with trained assistants, and
impedimenta. In Germany, where the executioner wields an axe, there is
the possibility of an absence of precision which fails to recommend
the method. Quite a dramatic scene was witnessed at the execution of
a female poisoner in the Kaiser’s dominions the other day. The story
suggested a Sanscullotic (Carlyle is responsible for the word!) outrage
of the French Terror. No, the executioner with the axe is a poor way of
fulfilling the last rites of the law.
If the Kneller portrait of James Scott, Duke of Monmouth, painted
after execution, is faithful, the executioner was singularly adroit
with his axe. But the use of the axe depends too much on personal
dexterity in the evasion of the atrocious. As an institution it is,
therefore, to be condemned. Hanging, on the other hand, has the Lee
case as a perpetual warning against it. (It will be remembered that a
murderer named Lee would not “hang.” He ultimately had his sentence
commuted to life imprisonment, from which, as an anomaly of the law,
he emerged in good health, after serving some twenty years.) It is
elaborate, and anything elaborate, in respect of such a matter as
the death penalty, savours of anachronism. Of course, there is some
traditional or legendary nonsense about the ignominy of hanging as
opposed to execution by the axe, but humanly enforced death is as
bad in one form as in another so far as the victim goes, so that the
argument hardly impresses one with its strength. Then, too, the whole
scheme is barbarous in practice; not that the would-be murderer is more
deterred by the fear of hanging than he would be by the fear of death
from a volley of muskets, but the machinery necessary for carrying out
a death sentence by hanging is out-of-date, crude, and not compatible
with the advance of the times. By far the simplest, cheapest, most
effective, worthy means of supporting the majesty of the law in its
supreme act of retribution is by the shooting of murderers on the day
set for execution. Half a dozen soldiers, drafted from the nearest
barracks, could be ordered to fire a volley at the condemned man in
the prison yard, or in any other place convenient to the authorities.
The inclusion of soldiers need not necessarily be a stumbling-block.
Armed prison warders, with some substantial idea of the uses of a gun,
would fulfil the same purpose. Death, to the condemned man, would be
just as humane in the abruptness of its arrival as the “six foot drop”
(or whatever prison parlance and the height of the victim make it). The
only good thing about hanging is its comparative cleanliness. That is
to say, there is not a deluge of blood from the person hanged, as there
is in the case of one decapitated. That is all very well, but death
from a volley of muskets does not produce the effects associated with a
slaughter-house, either.
Hanging is little less ridiculous than the Chinese custom of
walling-in a parricide with masonry, air-holed to delay death. Indeed,
it is no more appropriate to modern ideas than death from the Tarpeian
Rock would be. It is quite inconceivable that the rope should have
stood firm as an instrument of execution as long as it has. In the
days, not so far back (as recently as 1868), when hanging was carried
out in public, it had a certain awe-inspiring influence on the ignorant
mind. But now that the death penalty is executed within prison walls,
the quickest, easiest, and least complicated method must inevitably
recommend itself as the best. Death by the volley of muskets should
take an easy lead, at any rate over hanging. To pinion a man, to stand
him against a wall, and to order a handful of troops to fire, are
acts simple and certain in their effect. Advance arrangements become
unnecessary. The boxing and burial of the dead body are no different,
after such an episode, than the boxing and burial after a criminal has
been hanged. The removal of the evidence of taking blood is a detail.
As a concession to the _soi-disant_ humanitarian, blindfolding could be
adopted to ameliorate the condition of the condemned.
The writer is no violent antagonist to hanging; he is merely of opinion
that it could be superseded with some advantage, chiefly because the
formula is based upon an antiquated conception of punishment, which
does not seem to him to be as promising as the simple method of
shooting down the condemned criminal.
A paragraph of some interest may be taken from the current press. It
is headed, _Optional Suicide: Choice for Murderers_, and it runs as
follows: “A novel law providing an alternative to hanging for murderers
on whom the death sentence has been passed was presented to-day to
the Nevada Legislature. It sets forth that any person about to suffer
capital punishment, may, if he pleases, swallow a dose of hydrocyanic
acid. The new law was framed by a Code Commission, partly as the result
of the difficulty in finding an official executioner in Nevada. The
officers of the law, it seems, have frequently objected of late to
figuring in executions, on the ground that though the death sentence is
provided by the law, they are in fact guilty of voluntarily bringing
about death. The members of the Code Commission, therefore, adopted
a suggestion based on the cup of hemlock drunk by Socrates. If the
new law is passed by the legislature, condemned murderers, after the
sentence has been pronounced, will be allowed in future immediately
to designate the method of death they prefer. Ten minutes before the
time appointed for execution, a physician will visit the prisoner in
his cell and hand him (or her) a packet of poison, and explain its
effect and the proper way of taking it. The Bill sets forth that on
the receptacle containing the poison it shall be plainly written:
‘There is contained herein a sufficient quantity of hydrocyanic acid
to cause instantaneous death. You are authorised to take the same for
the purpose of carrying into execution the sentence of death heretofore
legally pronounced against you.’ It is further provided that ‘if the
defendant, after having elected to take the hydrocyanic acid, shall
fail or refuse to take the same, he shall forthwith be hanged by the
neck until he is dead.’ The majority of the Legislature are reported to
favour the Bill as framed by the Code Commission.”
The alternative of suicide given to the person under death sentence
does not recommend itself to English ideas. The sensibility of “the
officers of the law” in Nevada should be remedied by an infusion
of new blood. It is noticeable that the suicide suggestion is an
alternative to hanging, which appears to be the form usual in the State
of Nevada. Perhaps, the execution by a volley of muskets would appeal
to the requirements of the Nevada Legislature?[29] Particularly, as
the shooting could be done by the soldiery, or by marksmen other than
“officers of the law.”
Where several persons fire at one and the same time, it is practically
impossible to say which one is responsible for the shot which actually
causes death in the person fired upon. This ignorance has often helped
to soothe the soldier of sensitive conscience when, with others, he has
had to obey the order to fire on a spy or other person liable to death
under martial law. This indirectly suggests one of the most curious
possibilities of legal inadequacy. What is the position of a soldier
ordered by his officer to fire on a mob? Metaphorically, he is between
the devil and the deep sea. If he fires on the mob, he may be called
upon to account for his act to a civil tribunal, and thus be found
guilty of murder and hanged. While, on the other hand, if he does not
fire upon the mob, when so ordered by his officer, he may be tried by
court martial and shot!
To turn from murder to suicide and attempted suicide, much suggests
itself as anomalous and even absurd in the laws and customs of England
in this connection. There is an element of farce in the arrest,
detention and prosecution of some wretched man or woman who has
unsuccessfully endeavoured to escape from life.[30] Suicide attracts
numberless persons, excited by neurotic impulses. Sometimes a woman,
_enceinte_ and deserted by her lover, throws herself into a canal
or into the river. A man guilty of misappropriation, on the verge
of having his misdeed discovered, takes poison, shoots himself or
tries to jump in front of a railway train. If the poison comes up,
if the shot is inaccurate, or if there is a pit of salvation between
the railway metals, the would-be suicide may find himself before a
magistrate the next morning, with a burly policeman as his accuser.
A well-meant anomaly. When it has run its course, the accused may
be proceeded against by the person who has suffered through his act
of misappropriation. There are women who in moments of pique or
unreasoning rage, do away with themselves, largely because they cannot
conveniently vent it upon the cause of their discomfiture. Among
women-servants of inferior type, there is a tendency to commit suicide
because of some faithless lover, or other cause. These misguided
creatures generally first write a pathetic letter, disjointedly stating
their grievances, with the full confidence that it will be published in
the newspapers of the Sunday following the inquest. This strange vanity
throws a pitiful ray on the phases of the ignorant mind. Of course,
suicides are not confined to the lower or intermediate classes, but
they are more generally found among persons whose lot is not alleviated
by fortune or gentle birth.
Suicide is not always incomprehensible, though the coroner’s jury,
with its constant verdict, “during temporary insanity,” would seem to
make it so. There are plenty of people afflicted by disease, medical
men among them, who cut their throats or shoot themselves in desperate
resignation. For purposes of convenience, they are described as of
unsound mind by the considerate jury. Admittedly, an individual who
takes his own life is, _primâ facie_, unbalanced--the act indicates it.
Then, too, physical disease, which has preyed upon a man’s health until
his judgment has become warped, produces a form of _quasi_-insanity.
The suicide verdict, “whilst of unsound mind,” may also be agreeable
to surviving relatives and persons with claims against insurance
companies, but, strictly speaking, its accuracy is generally doubtful,
unless a “warped” mental state, hysteria in women, and the product of
the goadings of misfortune, are symptoms of definite insanity. If this
is so, there are few people in the land who approximate “sanity.” Of
course, in subjects who advance to the length of suicide the defects
specified have reached the stage of personal dominion, or, under
another name, _idée fixe_, in an acute form. This may technically
justify the insanity verdict, but it is questionable whether anything
else would, if one makes allowance for class and ignorance.
By the same process, the man who is goaded into theft by sheer hunger
must likewise be insane. His misfortunes have produced the hunger and
the hunger the theft. Thus desperation is often forced upon a man by
want of funds, something which means prospective, if not immediate,
hunger, and the sense of desperation in its most active state brings
about suicide. Whitaker Wright, the convicted felon, committed suicide
to escape a term of penal servitude. He had a reasonable, if not a
justifiable, motive for his act. So far as one remembers, off-hand, no
“temporary insanity” verdict was recorded in his case. Its balsamic
effect is, however, demanded in countless instances where suicides
have been prompted by equally explainable motives. Altogether, the
coroner’s jury’s verdict, of “suicide whilst of unsound mind,” is
generally inconsistent with the actual facts which led to the act of
self-destruction.
But the greatest anomaly of all in relation to the verdicts of
coroners’ juries is the murder verdict at an inquest. Why should
a perfectly irresponsible body, for a coroner’s jury _is_ an
irresponsible body in deciding the guilt of an accused murderer, find
_A_ guilty of the wilful murder of his wife _B_ before the Grand
Jury[31] has even found a true bill against _A_? The practice is
utterly absurd. (It may be said here, in parenthesis, that it seems
a waste of public money to carry on a police court prosecution and
proceedings before the coroner in connection with the same murder
charge. It should be noted that an accused person can be committed
for trial on the coroner’s warrant, though it is usual for the police
magistrate to do the committing.) It will be remembered that the
notorious Crippen case occupied the attention of a coroner and his
jury for some little time. There, certain fleshy remains found buried
in the cellar of a house in an outlying district of London, formed
the subject of the inquiry. It was alleged that they were portions
of a woman’s body. No bones were discovered by the police, and a
good deal of speculation was rife as to fixing the flesh with the
hall-mark of identity. It was admitted from the outset that the flesh
in question was human flesh, but beyond this a difficult task seemed to
lay before the authorities. It was made less irksome by the presence
of an operation scar, which turned out to have been on the body of
Crippen’s wife. The coroner’s jury ultimately found that the flesh
was the flesh of Cora Crippen, _alias_ “Belle Elmore,” and that H. H.
Crippen, formerly her husband, was guilty of her wilful murder. There
was no reasonable doubt as to the accused man’s guilt from the first.
He had carried on a practice as a medical quack, and in the course
of his business had employed a typist, Ethel Le Neve, or Neave, with
whom he cohabited. The Crippen woman disappeared somewhat suddenly;
inquiries were then set on foot by her friends to ascertain the truth,
which the husband failed to supply. Soon after receiving a visit from
a police-inspector, H. H. Crippen himself disappeared, and it was only
after frantic efforts had been made that the man was discovered to be
on board a vessel in mid-Alantic. Accompanied by his mistress, he then
fell an easy prey to his pursuers--after half Europe had been searched
for him in vain. The murder of which he was accused was a peculiarly
atrocious one. After poisoning his victim, he had deliberately set his
partial knowledge of anatomy to account by dismembering the corpse,
disposing of the bones and secreting the flesh. The man’s remarkable
nerve, employed in a legitimate channel, might have made him successful
in life, instead of making him the object of a hue-and-cry from St.
Petersburg to San Francisco. The story in detail, is newspaper history.
To return to the legal side of the matter, which has numerous less
notorious parallels, Crippen had been found guilty of the wilful murder
of his wife in the coroner’s court, though he had not yet been tried
by any jury qualified by law to convict him of the crime. To point
out a further anomaly, _i.e._, the fiction that an accused person is
assumed to be innocent until proved guilty, it may be argued that up
to the time of his trial at the Central Criminal Court, Crippen was
technically an innocent man, though he had already been found guilty
of wilful murder by an unauthorised body of jurors! Such a hopelessly
inconsistent state of affairs is grotesque in this country which
is held up as a pattern of justice and legal perfection generally.
Of course, in the Crippen case there was no sort of doubt whatever
as to the accused’s guilt; the case is here quoted because it may
be fresher in the public mind than many other cases, which portray
similarly anomalous features. At some trials, jurors are subjected to
downright inconvenience with a view to preventing their contact with
prejudicial persons or prints. In the Crippen case, the members of the
Old Bailey jury may reasonably have been expected to see newspaper
reports dealing with the verdict of the coroner’s jury. If they did
so read the information contained in these reports, they knew that
Crippen had already been _found guilty_ of the wilful murder of his
wife, Cora Crippen, a crime for which they were about to try him. Truly
enough, Crippen was convicted of murder at the Old Bailey, on evidence
of a remarkably satisfactory character, taking into consideration the
complexity of the original clues. But though this is in fact the case,
there is no gainsaying the grossness of the system which permits a man
to be publicly found guilty of a terrible offence for which he has not
yet even been tried.
The coroner’s jury’s verdict of “wilful murder” should be relegated to
ancient history in these practical times when precision and definity
rule all things. A coroner’s office gains no lustre by submitting its
holder to the satirical function of hearing verdicts which are not
verdicts in law or practice, but which, nevertheless, are liable to
confuse the ignorant mind and to do harm where good is intended. It
should be remembered that jurors are not as a rule drawn from a class
of original thinkers, persons, that is to say, who are intellectually
trained to discriminate--to judge for themselves. Even if they were,
the existing custom of allowing a murder verdict to be returned before
a case goes for trial is both prejudicial and improper.
FOOTNOTES
[28] See Appendix D.
[29] Some such scheme appears to have been adopted since this chapter
was written.
[30] “No fewer than four persons were charged at Marylebone
police-court this afternoon with attempted suicide.
“The first was a domestic servant, who was found lying in the road,
having taken poison.
“The Rev. Mr. Shaw, of Dulwich, said she had been in his service
sixteen months, but left a week ago to enter the service of the sister
of a great friend of hers. The situation was a great disappointment to
her, however, for ‘she was accustomed to be in rather refined service,’
and she complained that she was unable to wear any of her new frocks.
The result was that she left, and her great friend had thrown her over;
hence her position in the dock.
“Mr. Paul Taylor remanded her, saying he had never known a woman to
attempt suicide for less adequate reasons.
“The other defendants were men. Two were remanded, and the third was
discharged, as he denied that he wanted to kill himself--he bought the
laudanum found on him for his teeth.”--_Current Evening Paper._
[31] Reference to Grand Juries reminds one that the late Mr. Justice
Stephen (Sir James Fitz-James Stephen) “expressed his inability to
understand why a man should be presumed to be innocent when a Grand
Jury have sworn that they thought him guilty.” (Mr. A. T. Carter,
D.C.L.) It has been pointed out to the writer, by the way, that
the members of a Grand Jury sometimes throw out a bill, because,
“Otherwise, what are we here for?” In other words, without applying
any very special discrimination, they take upon themselves a function
opposed to the expert judgment of the committing magistrate, who has
heard all the evidence.
CHAPTER IX
LEGITIMATION[32]
The legitimation of natural children by the subsequent marriage of
their parents does not apply in England. It is for many reasons a
defect in the law that this should be so, inasmuch as the process of
_legitimatio per subsequens matrimonium_ often rights a wrong and does
justice to those who are kept out of a natural right by the unnatural
state of the law.
The only way by which the ordinary law can be surmounted respecting
the legitimation of natural children in this country is by means of a
Private Act of Parliament, an expensive, if not a difficult, instrument
to obtain. Among persons of limited income, the financial expenditure
necessary is a definite barrier.
In these times when fact rules, not the fiction of a long past,
there can be little excuse for keeping back the clock in the matter
of legitimation. If a man has lived with an honest woman and had
children by her, he ought to be able to give those children every
possible privilege and right by performing with their mother the
simple requirements of the law relating to marriage. The Private Act
of Parliament now needful to satisfy the English law should be made as
obsolete as the Private Act of Parliament required to secure a divorce
before the year 1858. Great benefit would accrue to the community by
the easy change suggested. It is not possible to fathom or gauge the
magnitude of a thing like the illicit union. It exists here and there
among all classes. Where there are children, there would be a distinct
incitement, were legitimation by subsequent marriage in force, to the
legal tie. The artistic temperament, for want of a better name, is
responsible for many such unions, and their legalisation would be a
temptation to a man who desires to leave his name and blood on the
earth without having to start afresh with some other woman on the legal
system. The healthy and characteristic appearance of his own living
stock are forceful incentives towards freeing it from all disability in
law, the more so, when he knows that the mother was, and is, moral in
instinct and in fact.
In his _Roman Law_, Lord Mackenzie makes some interesting
references to the theme. “Apart from the effect of legitimation,”
he writes, “the Roman law only considered those children lawful at
their birth who were begotten in marriage. It is a peculiarity of the
English law that it does not concern itself with the conception, but
considers a child legitimate who is born of parents married before the
time of birth, though they were unmarried when he was begotten....
The legitimation of children _per subsequens matrimonium_ originated
in a constitution of Constantine, which has not reached us, though
its tenor is given in a law of the Emperor Zeno, who renewed it. The
import of it was, that persons who had been living in a state of
concubinage, which was then a condition of society not condemned by
Roman customs, might, by entering into marriage, render the children
born in that state legitimate, provided the woman was _ingenua_, or
free-born, and the man had not already children of a lawful wife. The
general object of this law probably was to encourage persons who had
been living in concubinage to enter into marriage. Justinian extended
the law of Constantine, by declaring that children born in concubinage
should be legitimate generally, whether the father had legitimate
children by a lawful wife or not; and he removed the distinction as to
the woman being _ingenua_ or _libertina_. The children so legitimated
were subjected to the paternal power, and entitled to all the rights
of lawful children.... By Roman law the privilege of legitimation _per
subsequens matrimonium_ was strictly confined to the children of a
concubine, and did not extend to any other description of bastards....
Another kind of legitimation, _per oblationem curiæ_, was introduced
by Theodosius II., A.D. 445. As the duties of a _decurio_ were very
onerous, and accompanied with risk, a natural son who undertook the
office was thereby rendered legitimate. A natural daughter who married
a _decurio_ had the same privilege. Finally, Justinian added a third
species of legitimation, _per rescriptum principis_, when the emperor
declared natural children legitimate upon the requisition of the father
in certain special circumstances; as, for instance, when marriage
with the concubine had become impossible, and there were no lawful
children--or when the father, who had from some fortuitous cause been
prevented from legitimating his natural children in his lifetime,
declared in his testament that they should succeed to him as lawful
children and heirs _ab intestato_.... The doctrine of legitimation
by subsequent marriage is said to have been established in the canon
law by two constitutions of Pope Alexander III., preserved in the
decretals of Gregory. The canon law was more indulgent than the
Roman law, in granting the privilege of legitimacy not merely to the
offspring of concubinage, but to children begotten in fornication,
when their parents were afterwards married, provided the father
and mother were capable of contracting marriage at the date of the
sexual intercourse.... Legitimation by subsequent marriage was never
acknowledged by the law of England. When the clergy struggled to
introduce the rule of the canon law, it was indignantly rejected by the
famous statute of Merton, the English barons declaring with one voice,
‘quod nolunt leges Angliæ mutare quæ usitatæ sunt et approbatæ.’ From
the earliest period the English law has considered a child born before
marriage (_ante natus_) as illegitimate. And it has been decided,
that even where the child is born and the parents are subsequently
married in a foreign country, the law of which allows legitimation by
subsequent marriage, he is nevertheless incapable of inheriting land
in England.... On the other hand, the rule of the canon law, which
allowed the legitimation of all bastards, provided they were not the
offspring of an incestuous or adulterous connection, has been followed
both in France and Scotland, not by authority of the decretals, but
_in consequence of the equity and expedience of the rule itself_.[33]
By the French Civil Code (art. 331-333) it is declared: (1) ‘Children
born out of wedlock, other than those born of an incestuous or
adulterous intercourse, may be legitimated by the subsequent marriage
of their father and mother, provided the children have been legally
acknowledged before marriage, or in the act of celebration itself. (2)
Legitimation may take place even in favour of deceased children who
have left descendants, and in that case it operates in favour of these
descendants. (3) Children legitimated by subsequent marriage shall have
the same rights as if they had been born of that marriage.’... By the
law of France, marriage makes the children of an illicit connection
legitimate, although one of the spouses has, after the connection
and the birth of the children, contracted a marriage with another
person, and the parents have only married after the dissolution of
that marriage. As the child legitimated is considered to be born of
the marriage which has made him legitimate, he cannot participate in
a succession which has opened before that marriage, though subsequent
to his birth. For the same reason he cannot claim any preference,
in respect of mere priority of birth, in any question of succession
with the children of the intermediate marriage.... In Kerr v. Martin,
which was elaborately discussed in the Court of Session, the question
was raised, whether a marriage of either of the parents with a
third person, after the birth of a natural child, formed a bar to
legitimation by the subsequent marriage of the parents. Though the
judges were divided in opinion, the Court, by a majority, decided that
the child was legitimate, and that no mid-impediment was created by
the intervening marriage.... In Scotland, legitimation by subsequent
marriage confers upon a bastard the rights of a lawful child. Besides
being entitled to legitim, he succeeds under a destination to lawful
children. In any question with the children born of the bastard’s
parents in lawful wedlock, he has the same civil rights, as regards
succession and otherwise, as he would have enjoyed had he been born in
lawful marriage. But where there is lawful issue of an intermediate
marriage by one of the parents with a third person, a child legitimated
by a second marriage seems only a lawful child of the family as
becoming so by the second marriage, and therefore it is thought he
can claim no preference in respect to primogeniture or priority of
birth, which would have the effect of defeating or prejudicing the
rights of succession of the children of the first marriage arising at
their birth. According to this view, if the father had a natural son,
and after this a lawful son by a marriage with a third person, and
then entered into a second marriage with the mother of the bastard,
the lawful son by the first marriage would be entitled to the Scotch
heritage _ab intestato_, and could not be deprived of that right by the
legitimation of the natural son arising from the _second_ marriage.”
An interesting point of French law, which remains controversial in
Roman and Scottish law, according to the authority of Lord Mackenzie,
is that which decides the ineligibility of a child _conceived_ in
adultery to be legitimated by the subsequent marriage of the parents,
even though at the time of such child’s birth the parents were free
to marry. There are other little differences between the French and
Scottish laws relating to legitimation. On the whole, Scotland is
well equipped to deal with all such questions. It remains for England
to follow suit. There is no conceivable room for doubt that if a man
wishes his natural children to become legitimate, he should have the
power to make them so, without the considerable formality of an Act
of Parliament. An Act of Parliament is of course a perfect means of
accomplishment in the sense that it is a law unto itself, but the
expense and difficulty of obtaining such an instrument put it on
an impracticable plane, beyond the reach of nearly all. Though the
interest of many people in legitimation may be merely abstract, the
subject is of some marked importance. The laws of any country are
incomplete without reasonable provision for _legitimatio per subsequens
matrimonium_.
Interesting cases such as the recent Sackville peerage claim and the
earlier claim by “Viscount Hinton” to the peerage of Lord Poulett,
whom he alleged to be his legitimate father, if one may turn a phrase,
come from time to time before the English courts. Neither of the two
claims mentioned was successful, but there appeared to be little doubt
that the claimants in both cases were the offspring of the peers in
question. To fall at random upon history one remembers that William
the Conqueror was a natural son. The Duke of Monmouth, who married
the Countess of Buccleuch (in her own right) was a natural son of
Charles II., like the ancestor of the Duke of Richmond and Gordon, the
ancestor of the Duke of Grafton, and the ancestor of the Duke of St.
Albans, among others. The absence of a legal tie does not prevent the
perpetuation of blooded stock, though convention and policy have made
the tie a very necessary formality.
FOOTNOTES
[32] See Appendix E.
[33] Mr. Chester’s italics.
NOTE IN CONNECTION WITH THE NEXT CHAPTER.
At the moment of going to press, a singularly strange case is
reported in which a convicted murderer, Charles Ellson, has had his
conviction quashed by the Court of Criminal Appeal, irrespective of
the question of his guilt. The report in outline is as follows:
“The first successful appeal made by a person convicted of murder
since the establishment of the Court of Criminal Appeal was decided
yesterday by that tribunal, which quashed the conviction of Charles
Ellson for the murder of Rose Render in Clerkenwell. The man, who was
present in court, was immediately released.
“The decision was on technical grounds, apart from the question of
the prisoner’s guilt or innocence, and Mr. Justice Darling, giving
the judgment of the court, pointed to the case as strengthening their
often expressed opinion that the law should provide the court with
power to order a new trial in such cases.”--_Daily Mail_, Sept. 29,
1911.
CHAPTER X
CRIMINAL APPEAL AND THE BALL CASE
The Criminal Appeal Act is brought into operation nowadays by almost
every notorious murder case. Crippen availed himself of its provisions,
and, again, more recently, Morrison, the South London murderer, drove
his appeal through the new Court.
The end of sub-section (3), section 20, of the Act [see Appendix
F], contains a mildly confusing line, to say the least. It runs,
“But shall not apply in the case of convictions on indictments or
inquisitions charging any peer or peeress, _or other person claiming
the privilege of peerage_, with any offence not lawfully triable by
a court of assize.” Why a person other than a peer or peeress who
claims the privilege of peerage should be entitled to any special
consideration it is impossible to say. A claimant unless his claim has
been admitted, when he ceases to be a claimant and becomes a possessor,
cannot conceivably be entitled to any right appertaining to the dignity
claimed. The only persons entitled to the privilege of peerage are
peers and peeresses, and a claimant to any such privilege must perforce
be a peer or peeress or else be a person with no right whatever to the
privilege of peerage.
The case of R. _v._ Ball and Another is of enormous interest and
importance, so far as the workings of the Court of Criminal Appeal
are concerned. It suggests very forcibly the need for definitely
detaining all criminals pending final appeal, where any intermediate
step may allow of their liberation. _The Times_ newspaper for December
16, 1910, reports the case in the following words: “HOUSE OF LORDS.
Criminal Appeal. Director of Public Prosecutions _v._ William Henry
Ball.--Director of Public Prosecutions _v._ Edith Lilian Ball.
(_Before the_ Lord Chancellor, Earl of Halsbury, Lord Ashbourne, Lord
Alverstone, Lord Atkinson, Lord Gorrell, Lord Shaw _of_ Dunfermline,
Lord Mersey, _and_ Lord Robson.) This was the first appeal to the House
of Lords from the Court of Criminal Appeal, consisting of Justices
Darling, Pickford, and Coleridge, who quashed the conviction against
the present respondents for incest, which was made a criminal offence
by an Act which came into operation on January 1, 1909. The trial took
place at the Central Criminal Court before Mr. Justice Scrutton, who
sentenced the respondents. The Crown appealed under a section of the
Criminal Appeal Act, 1907, as was reported in _The Times_ of November
30.... The Attorney-General (Sir Rufus Isaacs, K.C.), Mr. R. D. Muir,
Mr. Rowlatt, and Mr. Graham Campbell appeared for the appellant; Mr.
Holman Gregory, K.C., Mr. Forrest Fulton, and Mr. Eustace Fulton for
the respondents. The arguments of counsel turned on the admissibility
of certain evidence tendered by the prosecution. The Lord Chancellor
moved that the order of the Court of Criminal Appeal be reversed,
and said that evidence of previous guilty relations between the
respondents was admissible, not to prove the evidence of a _mens rea_,
but in support, having regard to the proved facts, of the particular
charges made in the indictments. The principle that one offence is
not established by proof of a similar previous offence was one which
ought to be jealously guarded; but in the present case the evidence was
clearly admissible.... Lord Halsbury agreed with the Lord Chancellor
for the same reasons. The other noble and learned Lords concurred.
Appeal allowed.”
In _The Times_ for December 20, 1910, the same case is again
reported, this time in its aspect as a novelty. _The Times_, after
giving the heading, “COURT OF CRIMINAL APPEAL. House of Lords’ Reversal
of Criminal Appeal. (_Before the_ Lord Chief Justice _of_ England,
Mr. Justice Pickford, _and_ Mr. Justice Avory)”, states, “Mr. Graham
Campbell, on behalf of the prosecution, said that this Court a short
time ago quashed the conviction in this case, and on Thursday last
the House of Lords made an order reversing that order. The House of
Lords had no machinery for enforcing its order, and it was therefore
necessary to come back to this Court for an order to enforce it. The
Lord Chief Justice: If the order of the Court of Criminal Appeal is set
aside, you say that the conviction will stand? Mr. Graham Campbell:
Yes. The Lord Chief Justice: Have the two defendants had notice of
this application? Mr. Graham Campbell: Yes; the male defendant is
here, but the female defendant is not present.... Mr. Forrest Fulton
(Mr. E. Fulton with him) said he appeared for both defendants....
The Lord Chief Justice: The male defendant must now surrender....
The defendant having surrendered, Mr. Forrest Fulton submitted that
the intention of the Legislature in section 1, sub-section 6, of the
Criminal Appeal Act, 1907--the section which allowed an appeal to the
House of Lords--was that, so far as the individual defendants were
concerned, the order of the Court of Criminal Appeal, in quashing the
conviction, should be final. The decision of the House of Lords was
intended to be obtained for the guidance and direction of Courts in the
future. The object of going to the House of Lords was to get a ruling
on a question of exceptional public importance. The Court of Criminal
Appeal had exercised the function of the jury, and that Court, having
allowed the appeal from the conviction, the position was the same as if
the defendants had been acquitted by the jury.... Judgment: The Lord
Chief Justice, in giving the judgment of the Court, said that in their
opinion there was no doubt as to the power and duty of this Court. The
appeal from this Court to the House of Lords was successful, and the
order of the House of Lords was that the order of this Court should be
reversed, and the natural consequence was that the conviction, if he
might use the expression, was re-established. In these circumstances
the right procedure had been adopted--namely, to come to this Court,
which was a court of record, and apply to have effect given to the
order of the House of Lords, that was to say, to expunge from the
record of this Court the order which had been made setting aside the
verdict and entering a verdict of ‘Acquittal.’ It was said by Mr.
Fulton that this being an appeal by the prosecution, and this Court
having decided that the appeal should be allowed and a verdict of
‘Acquittal’ entered, the Court had no power to make a further order
in consequence of the reversal of their order by the House of Lords,
the decision of that House being, it was suggested, merely for the
guidance of Courts in the future. That was a very serious contention,
and was one which they could not adopt. By section 1, subsection 6, of
the Criminal Appeal Act, 1907, an appeal to the House of Lords might
be brought by the prosecution or the defendant or the Director of
Public Prosecutions if the _fiat_ of the Attorney-General was obtained.
If the defendant, in a case where the conviction had been affirmed,
could satisfy the Attorney-General that the case was one of sufficient
importance, he could take the decision of the House of Lords upon it,
and if he succeeded in obtaining an order of the House of Lords that
the decision of the Court of Criminal Appeal dismissing his appeal was
wrong, he was obviously entitled to ask the Court for an order entering
a verdict of ‘Acquittal’ and for his immediate release. When the
present case was before the House of Lords last week the question as to
the proper procedure was discussed, and an application to this Court,
which had full power to act in accordance with the order of the House
of Lords, was considered to be the proper course. As had been pointed
out by Mr. Justice Pickford during the argument, the finality of the
decision of the Court of Criminal Appeal was subject to the provisions
of the Criminal Appeal Act, 1907. It appeared to them that by virtue of
the decision of the House of Lords the conviction was restored, and,
if necessary, an order would be made amending the record in accordance
with the order of the House of Lords. The male defendant would remain
in custody to undergo his sentence. As regards the female defendant,
there would be an order for her arrest.... Mr. Forrest Fulton said
that the male defendant had originally given notice of appeal against
sentence as well as against the conviction. In view of what happened,
the question of sentence was not gone into. He (counsel) said he would
like a short time to consider as to this part of the appeal. The
Lord Chief Justice said the case could be put in the list again, if
necessary, early in the next sitting for this point to be considered.”
The Ball case brings out with dispassionate accuracy the utterly
fantastic possibilities of intermediate acquittal, followed by an order
for re-arrest. Whether the authorities, in this particular case, took
the precaution to carry out a very needful network of surveillance,
between the discharge of the prisoners by the Court of Criminal Appeal
(when the convictions were set aside), and the moment when the Lord
Chief Justice gave practical effect to the order of the House of Lords,
one does not know.
A prisoner once convicted at the Central Criminal Court should have
no very substantial grievance against law and order if later on he
is watched during an appeal _entr’acte_. He is in a vastly better
position than the prisoner convicted before the advent of the Criminal
Appeal Act, when the conviction usually stood until the sentence had
been worked out. The word, “usually,” is meant to add distinction
to the occasional commutation of a death sentence, and to any other
punitive abatement arising out of the prerogative of mercy, or from
personal good conduct on the part of the convict. Under the new system
of appeal, fresh opportunities are allowed the convict to obtain an
acquittal. It seems clear, therefore, that until the final appeal
has been settled, he should either be kept under close observation
or detained in custody. It may be un-English to spy upon the every
movement of any man, but it is practical and even necessary under the
possibilities afforded by the Act of 1907.
CHAPTER XI
CLIENT, SOLICITOR AND COUNSEL
A member of the Bar who ventures to touch such sensitive plants as
professional usage and etiquette must almost of necessity do so with
a sense of diffidence and modesty, that is, if he is not to outrage
his _esprit de corps_ and attack his own training in the traditions
of a great _métier_. The partial aim of this chapter is, in avoiding
revolutionary language, to state as clearly as possible what strikes
the travelled barrister as a radical disadvantage in his profession.
Usage has made it necessary, except in certain criminal court cases,
for a client to go to a solicitor--who in due course goes to counsel,
if the matter comes within the province of counsel. This intermediate
process of approach is doubly absurd in practice, when it is remembered
that counsel does not always confer with the solicitor himself but with
the clerk instead.
It is suggested that the cumbersome necessity for a client to go
to a solicitor before he can obtain access to first-class advice is
an anachronism at this time. The inaccessibility of all persons has
greatly diminished in recent years, with the result that to keep up
the system of inaccessibility in respect of counsel is often both hard
on the client and on counsel. It is one of the greatest barriers to
the Bar as a means of livelihood. It renders a great profession a mere
speculation, from the financial point of view. It hampers barristers
who would otherwise be able to do as well as the average holder of a
medical degree, something which does not apply at present. A doctor of
medicine, a bachelor of medicine, or a person qualified by the conjoint
diploma of the Colleges of Surgeons and Physicians, has a profession
opened up to him which at least may be used to stave off starvation,
but in the Bar degree there is no tangible reason why starvation
should not be the very first obstacle encountered by the newly-called
forensic aspirant. In practice, of course, members of the Bar are
generally possessed of funds, great or little, but in theory there is
no particular reason why a “gentleman of the long robe” should not be
in some difficulty for the price of his dinner a week after his Call to
the Bar! If one is attacked by illness, one does not send for a chemist
or go to a chemist and instruct him to obtain a physician. One at once
establishes direct relations with the medical adviser. Why should not
this apply equally to the relations of client and counsel? To defend
one’s interests, to secure one’s rights, to punish the wrong-doer,
to advise, are among the functions of counsel. Why should he be cut
off from a client by the obligations of professional etiquette? Why
should professional etiquette exist which places the profession to
which it refers at the mercy of another profession, quite separately
and independently constituted? It is ridiculous to suggest that a
barrister--unless he is extremely well-known, a financial leader of his
profession--is selected by the solicitor’s client. The solicitor more
often than not has the matter in his own hands. Certainly, there is
nothing to prevent a client from going to a solicitor and naming his
prospective counsel and insisting on the employment of such counsel,
but it is not usual as the relations are worked in practice. It is
partly due to the fact that the average client is so hopelessly out
of his element in matters of law. He frequently goes to a solicitor
in trepidation, to almost involuntarily submit to an uncomfortable
process, which the solicitor selects or inflicts at his discretion.
The law is not as a rule a recreation for anyone, save a few persons
whose minds have been turned by years of litigation. Consequently, the
uninitiated client trusts his solicitor implicitly. He is like wet
clay in the hands of a potter. He does whatever is recommended. It
is true that a solicitor has the knowledge that he may be answerable
in a court of law for want of skill in looking after his client’s
interests, but a client does not always know this. Indeed, even the
most rudimentary knowledge in connection with the law and its practice
is absent in the average person who goes to a solicitor for advice.
And yet the solicitor’s own knowledge is frequently little above that
of a mature office-boy, though he generally manages to apply it to
his own personal profit, at any rate! One does not tar all solicitors
with the same brush: there are many worthy exceptions; still, there
is something in the profession of a solicitor which seems to produce
certain generic failings.[34] The bad name of the profession in the
eyes of the public is not altogether unfounded; it is something more
than a cheap superstition or tradition. It gathers force when one comes
into frequent contact with some firms, which are licensed to practice
the law. The size of the offices and the number of persons employed are
not criteria of honesty: one knows of cases where seemingly prosperous
firms in the best and most central districts are no more trustworthy
than the solitary tottering scamp who struggles in a meagre garret. On
the other hand, it is a gamble to go to any solicitor, unless one has
definite evidence in advance that he is reputed to be just and honest
in his methods--and has practised his business for some years. There is
no scoundrel like an old scoundrel, of course, but a well-established
firm is _primâ facie_ better equipped with the requirements of a
client than some new firm which has not yet quite felt its feet. Long
established firms go wrong like newly-established ones, though they are
perhaps, generally speaking, less liable to, as they have more to lose,
if the practices they have carried on have been reputable. As a partial
standard of guidance it is, therefore, wise to go to an old firm
rather than to a new one. But general reputation, and recommendation
by former clients, are, after all, the best means of judging such
questions off-hand. One recalls an instance where a King’s Counsel,
retired from practice, recommended and upheld in obvious ignorance a
most shady firm, which, however, had exceedingly well-illuminated,
large, and central offices! With such an example in one’s memory, where
one knows the firm to be dishonest, one can but fear that the best
recommendations are apt to err.
The present writer holds no brief to attack the profession of the
solicitor: quite the contrary. But he is compelled to admit that he
has found many solicitors guilty of “dirty tricks” (for which there
are no punishments) towards their clients. “Dirty tricks,” a vulgar
but exactly expressive term, may be said to represent those acts in
which a man of honour or ordinary decency, even, could not indulge. To
cite some actual examples:--Deceitfully obtaining a signature charging
certain property with an exaggerated bill of costs on the tacit
understanding that a loan is to be the result; getting possession of
papers under a false pretext, where the circumstances are such that
no remedy exists in law for their recovery; disclaiming a telephone
message because its dispatch cannot be established in a subsequent
action; denying the receipt of a client’s funds until threatened with
the police. These and dozens of other somewhat similar occurrences
come to mind with clearness. That they are repeated daily all over the
country is almost indisputable. Petty deceit and meanness are qualities
which are to be found in a flourishing state in many solicitors’
offices. A straightforward and reputable solicitor would be the first
to admit as much. There is some satisfaction in knowing that there are
still many of the latter type left, though mischance often brings a
client into contact with the opposite variety, to his cost.
In suggesting that counsel should be enabled to advise a client
without the intervention of a solicitor, the writer is influenced by
the greater practical benefit of such a change. That branch of legal
business which is now in the keeping of the solicitors might remain
so; the system of carrying out the office work side of a case would
therefore be on the present basis. But, while the two professions
could continue to perform their accustomed functions, the alternative
for a client to approach counsel direct should be approved and
sanctioned. A freer atmosphere and greater scope would be bestowed upon
junior counsel if he were able to receive his clients as a medical
practitioner receives his patients.
In France, there is the distinction between the _avocat_ (or
barrister) and the _avoué_ (or solicitor), and yet there appears to
be no hindrance upon the freedom of the _avocat_ in respect of an
intermediary. In America, the counsellor-at-law, or “attorney-at-law,”
as he is called in Pennsylvania, unites in his legal qualification
the right to practise as a solicitor or as a barrister or as both. As
a matter of fact, an American law office generally contains several
counsellors-at-law, who divide the court and office work up between
them. In point of right, however, the counsellor-at-law is perfectly
justified in carrying on the joint profession of a barrister and a
solicitor. This system is not recommended here, though it seems to
work well in America. All--and it may appear a great deal to some
people--which one ventures to recommend is the freeing of counsel
from the disability of compelling a solicitor’s intervention. That
is to say, no change in the existing system is recommended beyond
sanctioning the more direct form of access. A solicitor could intervene
in the ordinary way between a client and counsel, but counsel should
be at liberty to advise, or to advocate the cause, of any client who
chose to present himself without the usual intermediary. Advance of
the times must almost certainly produce some such system. There can
be little doubt that the profession of an advocate would be much
facilitated by the change. Indeed, the only possible sufferers would be
the solicitors, whose profession offers sufficient variety of work to
enable them to sacrifice the costs arising from the invariable custom
of intervention. In a great number, perhaps, truly, in the majority, of
cases, the present custom might continue to apply; in some, in many,
confessedly, clients and barristers would alike avail themselves of
the less circumscribed relations. If a member of the Bar is allowed
to take “a docker,” or defence direct from a prisoner in the dock, he
should certainly, it seems only just to infer, be allowed to admit a
client to his chambers, unaccompanied by a solicitor. The fee could
be collected by the clerk on the same cash principle which applies
to the transactions of the greatest medical experts, or specialists.
Certainly, the suggestion has something to recommend it, particularly
in these days of practical thought.
If a barrister of the Court of Appeal of Paris, or a member of the New
York Bar, can be approached direct, there is reason to suppose that
the system suggested is neither gross nor one calculated to destroy
prestige.
The question of counsel’s fees is not without some interest to
laymen, as well as to those more intimately concerned. The great
incomes derived from practices at the Bar are largely imaginative. The
forty thousand a year of a certain very well-known practitioner was
probably never more than approximated by half that sum in reality. The
sixty thousand odd attributed to a leader of the Parliamentary Bar
in his ordinary years was also, in all probability, half fictitious.
Large fees, of course, have been known in every age. Under the Roman
Republic, M. Licinius Crassus made a fortune from advocacy, which
fortune, it is said, exceeded three millions sterling. He carried the
reputation, however, of exacting exorbitant fees from his clients. A
similar charge was made against P. Clodius and C. Curio. Cicero, too,
though he boasted of his respect for the Cincian law, which prohibited
the remuneration of advocates, was not without suspicion of mercenary
conduct. Lord Mackenzie, who touches upon the subject, believes that
he extracted a million sesterces (about £8,000) from Publius Sylla,
who was under impeachment. The money was cloaked, according to the
custom, as a loan, but there is no doubt it was paid in exchange for
Cicero’s services as an advocate. Another Roman method of rewarding
members of the Bar was by legacies left them by their clients in their
wills. These bequests were looked upon with some favour. Cicero boasted
that he had received in this form sums amounting to upwards of twenty
millions of sesterces, which was the equivalent of about £166,666.
It is interesting to note that there was a division of lawyers into a
first order, of _advocati_, and into a second order, of _formularii_,
under the Roman Empire.
Members of the English Bar, it may be pointed out, cannot sue for fees,
“although there be an express contract to pay them.”
“In France, ancient laws and decisions, as well as the opinions of
the doctors, allowed an action to advocates to recover their fees; but
according to the later jurisprudence of the Parliament of Paris, and
the actual discipline of the Bar now in force, no advocate was or is
permitted to institute such an action.” (Lord Mackenzie.)
So far as large fees are concerned, the £8,000 paid to Sir Thomas Wilde
(afterwards Lord Truro) in the case of Small _v._ Attwood is something
of a record, though it is eclipsed by the 300,000 francs received by
Gerbier, the eighteenth-century French advocate, from a French colonial
governor.
“In the sixteenth century, and for some generations previous, it
was customary for clients to provide food and drink for their counsel.
Here is an extract from a bill of costs made in the reign of Edward
IV.--‘For a breakfast at Westminster spent on our counsel, 1_s._ 6_d._;
for boat hire in and out and a breakfast for two days, 1_s._ 6_d._’
Another item, from the parish books of St. Margaret’s, Westminster,
runs thus--Also paid to Roger Fylpott, learned in the law, for his
counsel given 3_s._ 8_d._, with 4_d._ for his dinner.... When Sir
Thomas Moore lived in Bucklersbury, he ‘gained, without grief, not so
little as 400_l._ by the year. Considering the relative profits of the
Bar, and the value of money,’ says Lord Campbell, ‘this income probably
indicated as high a station as 10,000_l._ a year at the present day.’
In the reign of James I., the nominal salaries paid to the judges and
Crown lawyers were extremely low; their real incomes were derived from
certain fees which had to be paid into Court before any suitor could
obtain a hearing. ‘Francis Bacon,’ says Mr. Hepworth Dixon, ‘valued
his place as Attorney-General at 6,000_l._ a year, of which the King
paid him only 81_l._ 6_s._ 8_d._.’ Mr. Dixon goes on to mention several
similar instances, adding, ‘Yet each of these great lawyers had given
up a lucrative practice at the Bar. After their promotion to the Bench
they lived in good houses, kept princely state, gave dinners and
masques, made presents to the King, accumulated goods and lands.’ Sir
Edward Coke had made a still larger income as Attorney-General, the
fees from his private and official practice amounting to 7,000_l._ in a
single year.... We confess ourselves unable to reconcile such figures
as these with Lord Campbell’s statement about Sir Thomas Moore. Either
within a hundred years the value of money had enormously declined,
or Coke was making an income far exceeding anything attainable at
the present day. In his survey of the state of England in 1685, Lord
Macaulay says:--‘A thousand a year was thought a large income for a
barrister; 2,000_l._ a year was hardly to be made in the Court of
King’s Bench, except by Crown lawyers.’ Mr. Jeaffreson (in his _Book
about Lawyers_) impugns the accuracy of this statement, holding that
the former part of it is based on a passage in _Pepys’s Diary_. As long
ago as 1668, the Admiralty was a favourite target for Parliamentary
orators to shoot at, and Mr. Pepys, after priming himself with good
liquor, made such a spirited speech in behalf of his department that
his friends complimented him hugely, assuring him that if he would but
put on a gown and plead at the Chancery Bar, he could not get less than
1,000_l._ a year. We see nothing to complain of in this portion of Lord
Macaulay’s statement, especially as Mr. Jeaffreson himself adds in a
note, ‘Among advocates in Charles II’s reign, a professional income of
a thousand a year signified a practice and popularity that placed a
barrister in the second rank of the unquestionably successful followers
of the law. Somers was thought a fortunate and rising counsellor when
he enjoyed Lord Chancellor Nottingham’s favour, and made 700_l._ a
year.’ But the credit of the second part of Lord Macaulay’s statement
is certainly shaken by an examination of the fee-book of Sir Francis
Winnington, who was Solicitor-General to Charles II. In 1673 he
received 3,371_l._; in 1674, 3,560_l._; and in 1675--the first year of
his tenure of the Solicitor-General’s office--4,066_l._, of which only
429_l._ were office fees. Lord Keeper North made 7,000_l._ a year as
Attorney-General, and his brother, Roger, gives an amusing description
of his mode of bestowing the fees in three skull-caps--one for the
gold, one for crowns and half-crowns, and one for small money. In those
golden days the barrister did not open his mouth until his fingers had
closed on his client’s money, and credit was unknown in transactions
between counsel and attorney. A good deal of base money used, however,
to be taken on these occasions, and Bishop Burnet gravely praises Sir
Matthew Hale for his justice and goodness in not putting this flash
coin again into circulation. The worthy Judge’s virtue was emphatically
its own reward. He had gathered together a vast heap of this spurious
coin, when some thieves broke into his house, and contentedly carried
it off, believing that they were helping themselves to his hoarded
treasure. The practice of the Bar does not appear to have become more
lucrative in the reign of George II. than it was many years earlier.
During the last year of his tenure of the Solicitor-Generalship,
Charles Yorke earned 7,322_l._ Lord Eldon’s fee-book shows a great
advance. In 1794, he received 11,592_l._; in 1795, 11,149_l._; in 1796,
12,140_l._ Previous to Erskine’s elevation to the Bench, he received on
an average twelve special retainers in the year, from which he gained
at least 3,600_l._ Elsewhere (_Times Review_) we read of Erskine--‘It
is four and a half years since he was called and in that time he has
cleared 8,000_l._ or 9,000_l._, besides paying his debts, obtaining a
silk gown, and a business of at least 3,000_l._ a year.’”[35]
In bringing this chapter to a close, it seems only fitting again to
lay stress on the desirability of entitling a barrister to receive a
client without the obligatory intervention of a third person, namely,
a solicitor. An absurd anomaly, _the legal assumption that every man
knows, or is expected to know, the law_, would perhaps be somewhat
nearer fulfilment, if counsel were less unapproachable than they are
to-day.
[Mr. Chester wishes it to be clearly understood that his suggestion
of a direct approach to counsel is only put forward because he has
witnessed the success of the system in other countries--otherwise, he
would not venture to mention such an innovation. In this chapter, at
any rate, he desires to assume the _rôle_ of commentator rather than
that of an advocate.]
FOOTNOTES
[34] In the current press for March 20, 1911, there is the following
report, under the heading, “_Solicitors Struck off the Rolls_: King’s
Bench Divisional Court.--Justices Ridley, Darling and Channell.... Upon
the application of Mr. T. Payne, appearing for the Law Society, the
following solicitors were ordered to be struck off the Rolls:--Patrick
Burke, formerly of Bridge Street, Manchester; Francis Ernest Swann,
formerly of Fleet Street; and John Milton Kerr, formerly of Halifax....
It appeared that the statutory committee found Patrick Burke guilty of
misappropriation of clients’ money, including £1,000 out of £2,250,
handed to him by the Mother Superior of the Order of St. Joseph,
for the purpose of purchasing a house at Stafford for the sisters
upon their expulsion from France. The papers were sent to the Public
Prosecutor and a warrant was issued, but the solicitor could not be
found.... Francis Ernest Swann, on October 11, 1910, was sentenced
to five years’ penal servitude at the Central Criminal Court for the
fraudulent conversion of £1,700.... John Milton Kerr was convicted at
Leeds in November last of the fraudulent conversion of £1,976, and
sentenced to three years’ penal servitude.”
[35] _Legal Anecdotes_, edited by John Timbs.
CHAPTER XII
THE MORALITY BILL, ACCESSION AND CORONATION DECLARATIONS AND OATHS
I. THE MORALITY BILL
The Morality Bill, so designated because of its peculiar provisions,
contains some instructive reading. The most questionable provision in
the Bill is formed by a portion of sub-section (1), section 9. “If any
woman, who is a prostitute or a reputed prostitute, shall permit any
boy to have connection with her ... such woman shall be guilty of a
misdemeanour, and shall be liable upon conviction on indictment to be
imprisoned, with or without hard labour, for any term not exceeding two
years.” “Boy” for the purposes of the Bill means a male under the age
of nineteen years.
Such a provision could scarcely be conceived in any country other than
England or America. No doubt it is well-meant, but in the complex state
of society in towns, it is almost incapable of being put into practical
effect.
That part of subsection (1), section 19, which makes it punishable
for any person to favour or encourage the connection between a boy and
a prostitute, is quite above reproach. The Bill in its other provisions
is largely protective and meritorious. Its punitive side is also
justified: indeed, it is scarcely harsh enough towards the man who
lives on the immoral earnings of a woman: “Any person who knowingly
lives, either wholly or in part, upon the immoral earnings of a woman
(subsection (1), section 13), shall be guilty of a misdemeanour, and
shall be liable, if a male, to be imprisoned upon summary conviction
for any term not exceeding six months, with or without hard labour,
or upon conviction on indictment for any term not exceeding twelve
months, with or without hard labour.... Where a person is convicted
on indictment of an offence under this section, it shall be lawful
for the Court to direct that he be subject to the supervision of the
police under section eight of the Prevention of Crimes Act, 1871,
notwithstanding that he has not been previously convicted of crime.”
The summary conviction limit of six months is inadequate: so, likewise,
is the limit of twelve months fixed for the punishment on conviction on
indictment. The offence is one of the worst under the criminal law from
the human standpoint; it is not only _mala quia prohibita_ but _mala
per se_ in the public mind. The scoundrels who traffic in prostitution
well deserve a greater punishment than the Bill suggests. “Prostitutes”
in this sense does not mean the street women of the West End so much
as those girls who are lured from the Continent, on a promise of high
wages in London milliners’ shops, and then forced for a time at least
by the women who import them to frequent certain so-called theatrical
resorts. Many of these girls are not naturally vicious; they are
merely the prey of the older women who work in conjunction with male
supporters, some of whom take as much as thirty or forty pounds a week
from the earnings of one of the victims. The men in question advise on
and direct matters through the older women: as a matter of business,
when the necessity arises, they also supply persons to perform illegal
operations. To give an illustration of the _modus operandi_, generally,
it will be necessary to narrate a passage from the history of one
of these atrocious enterprises. _A_, a Paris shop-girl, aged 19,
good-looking and well-formed, was induced to come to this country by
_B_, a South American harlot established in London. The inducement was
a very good wage at a West End shop where the English language could
easily be picked up, according to report. _A_, a perfectly respectable
girl, agreed to come to London with _B_, and shortly afterwards she
found herself in a flat in Oxford Street (the rent of which was about
£7 a week). She was kept at the flat until some evening dresses had
been obtained, and then she was taken to a certain variety theatre
by _B_. The girl could speak no English and her character was not
self-assertive or strong. She knew nothing about French consuls or the
English police, and, then, too, her ordinary wearing apparel had been
taken from her by _B_. She, therefore, found herself on this first
occasion, in the brightly-lighted promenade of a “music hall,” with
many well-dressed men and women in her immediate vicinity. _B_ was
near at hand to keep a watchful eye upon her. A patron of the place,
one who was fluent with his French, soon made off with her to the
flat in Oxford Street, to which he had been directed by _B_. (_A_ was
herself incapable of supplying the address to the cabman). The girl
then explained that she had had her ordinary clothes taken from her
by _B_, that _B_ kept a man in the background, and that she, _A_, was
entirely helpless. At a subsequent meeting, _A_ explained that _B_ took
possession of about forty pounds a week, from her, and that the pretext
was that it was being banked! The only clothes to which she, _A_, had
access were evening gowns; she was kept without money, too, under
constant surveillance, amid conditions which she did not like. The
final scene was enacted a few months later, when the person, to whom
_A_ had confided her story, went to the flat and found her missing. Her
place had been filled by a newly-arrived _girl of fifteen_, procured
by the same process from a Paris shop. On persistent enquiry, _A_ was
found in another room suffering from the consequences of an illegal
operation, which had been forced upon her by the joint efforts of _B_
and the male director of affairs.
A maximum penalty of twelve months’ hard labour for a scoundrel of the
stamp of _B’s_ “lover” is most disproportionate to the offence. Of
course, such a man would be liable to a greater penalty, if a girl of
fifteen years of age were brought into the case. But on the other facts
alone, the law should be less merciful.
Section 10, of the Morality Bill, is worth transcribing in full.
“(1) If any male person shall have connection with a woman who is to
his knowledge his granddaughter, sister, daughter, niece, or mother,
he shall be guilty of felony, and shall be liable upon conviction on
indictment to be imprisoned, with or without hard labour, for any term
not exceeding two years, or be kept in penal servitude for any term not
less than three years and not exceeding seven years: Provided that if
it is alleged in the indictment and proved that the girl was, at the
time of the commission of the offence, under the age of sixteen years,
the maximum term of penal servitude which the court may inflict shall
be ten years.
“(2) If any male person shall attempt to have connection with a woman
who is to his knowledge his granddaughter, sister, niece, or mother, he
shall be guilty of a misdemeanour, and shall be liable upon conviction
on indictment to be imprisoned, with or without hard labour, for any
term not exceeding two years.
“(3) If any woman, not being a girl, shall permit her grandfather,
father, brother, uncle, or son to have connection with her (knowing
him to be her grandfather, father, brother, uncle, or son, as the case
may be) she shall be guilty of a felony, and shall be liable upon
conviction on indictment to be imprisoned, with or without hard labour,
for any term not exceeding two years, or to be kept in penal servitude
for any term not less than three years, and not exceeding seven years.”
Where the word “mother” is used in the first part of subsection
(1), at sight it appears careless to put, nearer the end of the
same subsection, “provided that if it is alleged in the indictment
and proved that _the girl was, at the time of the commission of the
offence, under the age of sixteen years,” etc._
The “Memorandum” preceding the Morality Bill contains an epitome of the
whole conception. “The general object of this Bill is to substitute
for the Criminal Law Amendment Act, 1885, the Vagrancy Act, 1898, the
Punishment of Incest Act, 1908, the Obscene Publications Act, 1857,
the Indecent Advertisements Act, 1889, and certain other enactments,
a comprehensive measure which shall materially strengthen the law
relating to offences against morality and decency.... The chief
proposals of the Bill are:--
“1. To raise ‘the age of consent’ to nineteen, the full offence to be
felony, and the maximum punishment to be--(_a_) if the girl is any age
under sixteen, penal servitude for ten years; (_b_) if the girl is over
sixteen, penal servitude for five years.
“2. To protect all feeble-minded women and girls, the full offence to
be felony, the attempt a misdemeanour, and the maximum punishment to be
for the felony penal servitude for five years, and for the misdemeanour
imprisonment for two years.
“3. To make it felony to obtain, and a misdemeanour to attempt to
obtain, consent by any inducement or threat in connection with
employment, the maximum punishment to be for the felony penal servitude
for five years, and for the misdemeanour imprisonment for two years.
“4. To make it a misdemeanour for any woman or girl of abandoned
character to permit a boy under nineteen years of age to have immoral
relations with her, or for any person to favour or encourage such
relations, the maximum punishment to be imprisonment for two years.
“5. To make the full offences specified in section two, which relates
to procuration, of the Criminal Law Amendment Act, 1885, felonies, for
which the maximum punishment is to be penal servitude for five or ten
years, according to the age of the girl; and to extend the protection
against procuration, and attempted procuration, now enjoyed by girls of
good character under the age of twenty-one--(_a_) to all women of good
character; (_b_) to all feeble-minded women and girls, whatever their
character; (_c_) to all girls under the age of nineteen, whatever their
character.
“6. To make the offences specified in subsections (1) and (2) of
section three of the Criminal Law Amendment Act, 1885 (_viz._,
procuration by threats or false pretences, etc.), felonies for which
the maximum punishment is to be penal servitude for five or ten years,
according to the age of the girl; and to make an attempt to procure by
false pretences a misdemeanour for which the maximum punishment is to
be imprisonment for two years.
“7. To make the offence specified in subsection (3) of section three
of the Criminal Law Amendment Act, 1885 (_viz._, the administration of
drugs for an immoral purpose) felony for which the maximum punishment
is to be penal servitude for ten years.
“8. To make the offences specified in sections six, seven and eight
of the Criminal Law Amendment Act, 1885 (_viz._, the offences of
permitting defilement on premises, of abduction for an immoral purpose,
and the unlawful detention for such purpose) felonies for which the
maximum punishment is to be penal servitude for five or ten years,
according to the age of the girl.
“9. To make an offence under section eleven of the Criminal Law
Amendment Act, 1885--(_a_) when committed with a boy under the age of
sixteen years, felony for which the maximum punishment is to be penal
servitude for ten years; (_b_) when committed with a person over that
age, felony punishable with penal servitude for five years.
“10. To make the keeping of premises for immoral purposes a
misdemeanour punishable summarily with a fine of 50_l._ and
imprisonment for six months, or upon conviction on indictment with a
fine of 200_l._ and imprisonment for two years.
“11. To make further provision for the suppression of indecent,
immoral, and grossly offensive literature, pictures, advertisements,
etc., the offence to be a misdemeanour punishable upon summary
conviction with a fine of 50_l._ and imprisonment for six months, or
upon conviction on indictment with a fine of 100_l._ and imprisonment
for twelve months. Further powers are given to the Postmaster-General.
“12. To make it a misdemeanour punishable upon summary conviction
with imprisonment for six months, or upon conviction on indictment
with imprisonment for twelve months, for any male person knowingly to
live upon the immoral earnings of a woman or girl; and to make it a
misdemeanour punishable upon summary conviction with imprisonment for
six months for any woman to do so. (The expression ‘immoral earnings’
is defined to mean the earnings of prostitution or of habitual
immorality.)
“13. To make it a misdemeanour punishable summarily with imprisonment
for six months, or upon conviction on indictment with imprisonment for
twelve months, for a male person to solicit persistently for an immoral
purpose in a street or public place.
“14. To make ordinary cases of soliciting punishable summarily with a
fine of 10_l._, or with imprisonment for two months without the option
of a fine, or upon a second or subsequent conviction with a fine of
30_l._, or with imprisonment for six months without the option of a
fine.
“15. To extend to an amended form the provisions of the Children’s
Act, 1908, relating to persons having the custody of girls, and either
causing their seduction or not exercising due care, to the cases of
girls between the ages of sixteen and nineteen years.
“16. To strengthen the provisions of the Children’s Act, 1908, relating
to the punishment of parents and others who allow children and young
persons to reside in or frequent premises kept for immoral purposes;
and to extend those provisions to the protection of persons between the
ages of sixteen and nineteen.
“17. To enable a person who is convicted on indictment of--(_a_)
keeping premises for immoral purposes; or (_b_) living on a woman’s
immoral earnings, being a male; or (_c_) persistently soliciting, being
a male; or (_d_) selling indecent literature, etc., to be placed under
police supervision, notwithstanding that such person has not been
previously convicted of crime.
“18. To require courts to recommend for expulsion aliens over the age
of nineteen who are convicted of certain offences.
“19. To restrict the punishment for rape to penal servitude for not
more than ten years, except under certain aggravated circumstances,
when the maximum term is to be fifteen years.
“20. To restrict the punishment for offences under sections fifty-eight
and sixty-one of the Offences against the Person Act, 1861, to penal
servitude for not more than ten years, and for offences under section
sixty-two of that Act to penal servitude for not more than seven years.
“21. To re-enact the Punishment of Incest Act, 1908; to extend its
range; and to make such other amendments as are required to render its
provisions consistent with the above proposals, the full offence to be
felony.
“22. To restrict the punishment of young offenders for any of the above
offences (including rape, incest, etc.) by providing--(_a_) that no
person under the age of twenty-one shall be liable to a longer term of
penal servitude than seven years, unless he is guilty of rape under
certain aggravated circumstances, in which case he is to be liable to
penal servitude for ten years; and (_b_) that no person under the age
of eighteen shall be liable to penal servitude.
“23. To render an indecent assault upon a person under the age of
nineteen years, cognizable summarily with the consent of the accused,
but to increase the maximum term of imprisonment which a court of
summary jurisdiction may, under those circumstances, inflict, to six
months. (_Cf._ a similar provision in the Children’s Act, 1908.)
“24. To enable the court to be cleared (representatives of the press
being allowed to remain) during proceedings relating to offences
against morality or decency, and to enable the worst of such cases to
be tried _in camera_.
“25. To repeal--(_a_) The Criminal Law Amendment Act, 1885; (_b_) The
Vagrancy Act, 1898; (_c_) The Punishment of Incest Act, 1908; (_d_)
Sections sixteen, seventeen, eighteen, one hundred and twenty-eight
(2), of the Children Act, 1908, and the Second Schedule of that
Act; (_e_) The Obscene Publications Act, 1857; (_f_) The Indecent
Advertisements Act, 1889; (_g_) Other enactments.”
The comprehensive nature of the Morality Bill can scarcely be doubted
after a perusal of the foregoing _Memorandum_. There is no question
whatever, the bulk of the provisions are good. But the penal offence
constituted by a prostitute’s intercourse with a boy under nineteen
seems somewhat far-fetched. The intention may be good, though it would
look peculiar as a section of a statute. There is no need to comment
further on the subject here.
Prior to going through the Bill, the writer had intended suggesting
the insertion in it of the following provision: “In any case where it
has been proved that a girl was induced to sexual intercourse on the
promise or understanding that a theatrical or other engagement was
to be the result of such intercourse, or where a theatrical or other
engagement has already been obtained and is to be continued only on
submission to an act of sexual intercourse with a manager, proprietor,
or other person in authority, then such person shall be guilty of a
misdemeanour punishable with imprisonment with or without hard labour
for any term not exceeding twelve months.” On examining the contents of
the Bill, he, however, found the contingency provided for in section 8.
“8.--(1) If any male person shall obtain, or if any person of either
sex shall aid or abet any male person in obtaining, connection with any
woman by any inducement or threat in connection with her employment
in any capacity, or with any attempt on her part to obtain employment
in any capacity, such person shall be guilty of felony, and shall
be liable upon conviction on indictment to be imprisoned, with or
without hard labour, for any term not exceeding two years, or to be
kept in penal servitude for any term not less than three years and not
exceeding five years. (2) If any male person shall attempt to obtain,
or if any person of either sex shall aid or abet any male person in
attempting to obtain, connection with any woman by any inducement or
threat in connection with her employment in any capacity, or with any
attempt on her part to obtain employment in any capacity, such person
shall be guilty of a misdemeanour, and shall be liable upon conviction
on indictment to be imprisoned, with or without hard labour, for any
term not exceeding two years.”
There are two classes of enterprise which are peculiarly associated
with what may be termed submissive immorality for the purpose of
legitimate employment. In the one class the victim’s downfall finds
its beginning in connection with theatrical aspirations, whereas in
the other class it is indirectly brought about by the demands of
fashion. There is reason to believe that a well-formed, good-looking
girl, who is anxious to get on the stage will often only accomplish her
desire by first submitting to sexual intercourse with her prospective
employer. This is not always so, naturally, but it is a general custom
in some quarters. In many, if not in most cases, submission means the
seduction of a previously virtuous girl. The condition precedent to
a theatrical engagement, more particularly on the “musical comedy”
stage, is, therefore, of such a character that the harshest measures
are needed to put it down. The whole process is iniquitous. On the one
hand, there is an eager, inexperienced young woman, foolish enough
to want to go on the stage, and on the other, there is a calculating
scoundrel who regards her as his certain prey. The second important
variation to the offence of carnally knowing a woman, through the
influence of her employment, frequently arises in West End milliners’
shops. The employment by male _costumiers_--that is to say, at the
most fashionable shops--of attractive young women, who, for their
figures and appearance, are chosen as models to display Paris hats and
costumes, gives rise to a whole series of iniquitous conditions which
would shame the most indecent novel. Models of the sort referred to are
generally subjected to much the same treatment as the “musical comedy”
aspirants, but there is this difference--that the former usually obtain
the engagement before the “cloven hoof” of their employer begins to
show itself.
The searchlight of vigilance would consume itself were it applied to
half the subjects which pass through one’s mind as suitable for attack.
That is to say, in connection with submissive immorality for the
purpose of legitimate employment.
II. ACCESSION AND CORONATION DECLARATIONS AND OATHS
This little work would, perhaps, be incomplete without some mention of
the Accession Declarations and Coronation Oaths.
It is first proposed to incorporate here the “Declarations of Heads of
States” which declarations were collected and ordered to be printed by
the House of Commons in May, 1901.
GREAT BRITAIN AND IRELAND.
I. _Declaration made by the King, on his Accession, in the House of
Lords, pursuant to section 1 of the Bill of Rights 1 W. & M. sess. 2,
c. 2_.
I, EDWARD, do solemnly and sincerely, in the presence of God,
profess, testify, and declare, that I do believe that in the
Sacrament of the Lord’s Supper there is not any transubstantiation of
the elements of bread and wine into the body and blood of Christ at
or after the consecration thereof by any person whatsoever; and that
the invocation or adoration of the Virgin Mary or any other Saint,
and the sacrifice of the Mass, as they are now used in the Church
of Rome are superstitious and idolatrous, and I do solemnly, in the
presence of God, profess, testify, and declare, that I do make this
declaration and every part thereof in the plain and ordinary sense
of the words read unto me as they are commonly understood by English
Protestants without any evasion, equivocation, or mental reservation
whatsoever, and without any dispensation already granted me for this
purpose by the Pope or any other authority or person whatsoever, or
without any hope of such dispensation from any person or authority
whatsoever, or without thinking that I am or can be acquitted before
God or man, or absolved of this declaration or any part thereof
although the Pope or any other person or persons or power whatsoever
should dispense with or annul the same, or declare that it was null
and void from the beginning.
II. _Oath with regard to the Church of Scotland, taken by the King at
his first Council, on 23rd January, 1901._
I, EDWARD VII., King of the United Kingdom of Great Britain and
Ireland, Defender of the Faith, do faithfully Promise and Swear that
I shall inviolably maintain and preserve the settlement of the true
Protestant Religion, with the Government, Worship, Discipline, Rights
and Privileges of the Church of Scotland as established by the Laws
made there in prosecution of the Claim of Right, and particularly
by an Act, intituled An Act for securing the Protestant Religion
and Presbyterian Church Government, and by the Acts passed in the
Parliament of both Kingdoms for Union of the two Kingdoms.
SO HELP ME GOD.
EMPIRE OF GERMANY.
There is no provision in the constitution of the German Empire for an
oath regarding the constitution on the part of the German Emperor; nor
does the constitution contain provisions respecting the making of a
promise on oath or of other solemn declarations by the Emperor. On the
other hand, the King of Prussia, in accordance with Article 54 of the
Charter of the Constitution for the State of Prussia, in the presence
of the United Chambers of the Prussian Diet, makes a promise on oath
“to keep the constitution of the Kingdom fixed and inviolable, and to
govern in accordance with it and with the laws.”
UNITED STATES.
The oath or Affirmation taken by the President of the United States
before the entrance upon the execution of his office is prescribed by
the Constitution of the United States (Article II., section 1), and is
as follows:--
“I do solemnly swear (or affirm), that I will faithfully execute the
office of President of the United States, and will, to the best of my
ability, preserve, protect and defend the Constitution of the United
States.”
FRANCE.
The President of the French Republic takes no Oath on the assumption of
office.
AUSTRO-HUNGARY.
The Emperor on his Accession takes the Solemn Oath in the presence of
both houses of the Reichsrath--
“To maintain the inviolability of the fundamental laws of the Kingdoms
and Provinces represented in the Reichsrath and to rule in accordance
with these and the common laws of the Empire.”
The Oath taken by the present Emperor as King of Hungary:
“We, Francis Joseph I., by the Grace of God, etc., as Hereditary and
Apostolic King of Hungary and its Dependencies, swear by Almighty
God, by the Virgin Mary, and by all the Saints of God, to maintain
the Churches of God, the municipal liberties of Hungary and its
Dependencies, as well as the ecclesiastical and lay inhabitants of
those states of every rank, in their rights, prerogatives, freedom,
privileges, laws, in their ancient, good and approved customs; to see
that justice is done all: to maintain intact rights, constitution,
and the legal independence and territorial integrity of Hungary
and its Dependencies: to respect the laws of the late King Andreas
II., not to alienate nor curtail the dominion of Hungary and its
Dependencies, nor whatever belongs to these countries by right or
title, but as far as possible to increase and extend them; and that
we will do all that we are justly able to do for the common welfare,
glory, and increase of these countries. So help us God and all His
Saints.”
A statute of 1910, the Accession Declaration Act, “to alter the form
of the Declaration required to be made by the Sovereign on Accession,”
provides for the use of the following Oath by the King:--
“I (_here insert the name of the Sovereign_) do solemnly and
sincerely in the presence of God profess, testify, and declare that
I am a faithful Protestant, and that I will, according to the true
intent of the enactments which secure the Protestant succession to
the Throne of my Realm, uphold and maintain the said enactments to
the best of my powers according to law.”
It is not uninteresting to learn the official position of the Sovereign
as defined by statute (24 Henry VIII. c. 12.):
“Whereby divers sundry old authentic histories and chronicles, it
is manifestly declared and expressed that this realm of England
is an empire, and so hath been accepted in the world, governed by
one supreme head and King, having dignity and royal estate of the
Imperial Crown of the same:
“Unto whom a Body Politic, compact of all sorts and degrees of
people, divided in terms by names of spiritualty and temporalty, been
bounden and owen to bear, next to God, a natural and humble obedience.
“He being also institute and furnished by the goodness and suffrance
of Almighty God with plenary, whole, and entire power, pre-eminence,
authority, prerogative, and jurisdiction, to render and yield
justice and final determination to all manner of folk, resiants or
subjects within this his realm, in all causes, matters, debates, and
contentions happening to occur, insurge, or begin within the limits
thereof, without restraint or provocation to any foreign princes or
potentates of the world.”
The monarch--Henry VIII.--in whose reign the above was passed swore a
Coronation Oath[36] little different to the Oaths of Charles II. and
James II., though the Reformation came in between. The Oath taken by
Charles II. at his Coronation was worded thus:--
“Sir, will you grant and keep, and by your oath confirm to the
people of England, the laws and customs to them granted by the Kings
of England your lawful and religious predecessors, and namely the
laws, customs, and franchises, granted by the glorious King, St.
Edward, your predecessor, according to the laws of God, the true
profession of the Gospel established in this Kingdom, agreeable to
the prerogative of the Kings thereof, and the ancient customs of this
realm?”
_King_: “I grant and promise to keep them.”
“Sir, will you keep peace and godly agreement (according to your
power) both to God, Holy Church, the clergy, and the people?”
_King_: “I will keep it.”
“Sir, will you (to your power) cause law, justice, and discretion in
mercy and truth to be executed to your judgment?”
_King_: “I will.”
“Sir, will you grant to hold and keep the laws and rightful customs
which the commonalty of this your Kingdom have: will you defend and
uphold them to the honour of God, so much as you lieth?”
_King_: “I grant and promise so to do.”
The Coronation Oath of His Majesty King George V.[37] conformed to the
requirements of the William and Mary legislation--which has regulated
the subject ever since its passage, with trifling variations.
The late King’s Accession Declaration, which gave religious offence
to many of his Majesty’s subjects, has been abated, in pursuance of
section 1, Accession Declaration Act, 1910.
“The declaration to be made, subscribed, and audibly repeated by the
Sovereign under section 1 of the Bill of Rights and section 2 of the
Act of Settlement shall be that set out in the Schedule to this Act
instead of that referred to in the said sections.”[38]
FOOTNOTES
[36] CORONATION OATH OF HENRY VIII
“Will ye graunte and kepe to the people of England, the lawes and
the custumes to theym, as of old tyme rightfull and deuoute Kings
graunted, and the same ratefye and conserne by your othe and the
spiritual lawes, custumes, and libertees graunted to the clergy and
people by your noble predecessors and glorious King Seint Edward?”
_The King shall answer_: “I graunte and promytte.”
“Ye shall kepe after your strength and power to the Church of God, to
the clergy and the people, hoole pees and goodely concorde.”
_The King shall answer_: “I shall kepe.”
“Ye shall make to be done after your strength and power equall and
rightfull justice in all your Domes and Judgements, and discrecion
with mercy and trouthe.”
_The King shall answer_: “I will do.”
“Do ye graunte the rightfull lawes and custumes to be holden, and
promytte after your strength and power such lawes, as to the honor
of God shall be chosen by your people, by you to be strengthend and
defended?”
_The King shall answer_: “I graunte and promytte.”
[37] See Appendix F.
[38] _Vide supra._
APPENDIX A
DIVORCE
The following extracts from the evidence of Earl Russell and from the
evidence of Mr. Atherley-Jones, K.C., before the Divorce Commission
(December 19th, 1910), are not without some interest. They were
discovered in _The Times_ report by accident, after the present
author’s chapter on divorce had been written.
“Lord Russell, who was the first witness, said he had been interested
in the question of divorce since 1890. He had studied the history of
the question, the earlier part of which was naturally ecclesiastical;
but as Parliament, in his opinion, was not concerned in legislation
with ecclesiastical views he did not propose to go into them. In
his view the State had no more right to dictate to him or his
fellow-citizens what should be the nature of contracts of marriage
from an ecclesiastical point of view than it had to deal with the
education of his children, with the exercise of the franchise, or
with other matters from an ecclesiastical point of view.
“The existing law suffered from three great defects:--
“(1) The premium placed upon adultery and the advantages given to
those who are willing to commit it: (2) the practical denial of
divorce to the poor; and (3) the provision of an illusory remedy in
many cases of matrimonial hardship, such remedy itself being directly
provocative of further adultery. In the case of the poor, the
petitioner might be in law fully entitled to his remedy, but unless
he could find a sum varying from £30 to £70 he must go without. This
sum to be spent in one lump was probably out of reach of four-fifths
of the husbands and nine-tenths of the wives of the country. The
proceeding _in formâ papueris_ did not adequately meet the case. To
his mind the obvious remedy was to give jurisdiction to the County
Courts, manned by able Judges who habitually tried cases infinitely
more difficult than those of divorce. In the vast majority of cases
the evidence would be in the locality of the County Court, thus
reducing the expense of witnesses. He supposed there should be some
limit of income--say £500 a year--and he thought it would be fair to
prohibit a petitioner in the County Court from seeking damages.
“The remedy of judicial separation had been extended and kept alive
to satisfy the feeling that something ought to be done to protect the
feelings of husbands and wives while not offending the ecclesiastical
conscience. To his mind, JUDICIAL SEPARATION WAS A WICKED PROVISION
OF THE LAW, WITH A VERY HIGH PROBABILITY OF ADULTERY BY THE SEPARATED
PARTIES.
“The vexed question of divorce appeared to have slumbered for about
50 years. In May, 1902, he introduced a Bill in the House of Lords to
increase the causes for divorce, to assimilate the practice of the
Divorce Court to some extent to that of other divisions of the High
Court, TO RELIEVE POOR PEOPLE BY ENABLING THEM TO BRING THEIR SUITS
IN THE COUNTY COURT, and TO PROVIDE FOR LEGITIMATION BY SUBSEQUENT
MARRIAGE and for marriage with the deceased wife’s sister, afterwards
dealt with in a separate Bill.
“_The Chairman._--Would you recapitulate the grounds which you then
proposed?
“The witness said the grounds, in addition to adultery, were:--That
since the marriage the other party to the marriage has been guilty of
cruelty to the petitioner; that the other party to the marriage is
undergoing penal servitude for a term of not less than three years;
that the other party to the marriage has during the year preceding
the presentation of the petition been found or certified to be of
unsound mind under the Lunacy Act, 1890; that during the three
years preceding the presentation of the petition the parties to the
marriage have lived apart, and that throughout that period either of
the parties did not intend to resume cohabitation; that during the
year preceding the presentation of the petition the parties to the
marriage have lived apart, and that the other party concurs in the
petition.
“He introduced three other Bills on a smaller scale providing for
divorce in the case of desertion in 1903, 1905, and 1906. The first
and second were unanimously rejected; three voted for the third; the
Government whips told against the fourth, and it therefore received
no support.
“There was much to object to in the procedure of the Divorce Court.
He had heard no particular reason why pleadings in the Divorce Court
should be sworn to, but if it was agreed that people were thereby
debarred from launching baseless charges there was something to be
said for it. It ought not to be necessary to swear a jury where the
damages were agreed. The practice by which a wife could accuse a
woman of adultery and the Court could find her guilty without the
woman having notice of the proceedings or an opportunity of being
heard was indefensible. He thought only the decrees of the Court
with the names of the parties should be published. The suggestion
that publicity was a deterrent was open to a good deal of doubt. It
was a great hardship for a man or woman that all the details of an
unsuccessful charge of adultery should be published. Even though
acquitted, the damage done was irremediable. There was a growing
tendency on the part of certain newspapers to treat the Divorce Court
as the fountain head of sensational news.
“In considering legislation he refused to have regard to the
religious views of particular sects. He admitted marriage to be a
contract which affected not only the two parties to it, but the
community, and he considered that the community was bound to have
regard to the moral tendency of the marriage and divorce law and to
the interests of the children. Such expressions as ‘the sanctity
of marriage’ and “the sanctity of the home,” often used in this
connection, he regarded as having no particular meaning in the case
of adulterous homes or establishments where husband and wife had
long been separated. He suggested, therefore, that the test which
should be applied was whether any of the attributes of marriage
were still in existence between husband and wife. Where the spouses
had been separated for a term of years; where children had already
made their home with one or the other; and where no element of the
marriage tie remained except some financial relations and the legal
bond, he suggested that the law should step in, and, recognizing
the existing state of things, should sever the legal bond and
leave the parties free to create new homes. Since the decision of
“Jackson _v._ Jackson” the wife might leave her husband at the church
door, and unless one or other of the parties took advantage of the
privileges which the law reserved for adulterers, they would both
remain compulsory celibates for the rest of their lives. He still
thought the ideal state of the law would be that set out in the Bill
he presented to the House of Lords in 1902. English legislation,
however, always proceeded by piecemeal tentative advances, and
probably, therefore, the simplest form of legislation would involve
four advances:--(_a_) Equality of the sexes; (_b_) insanity a ground
of separation; (_c_) all judicial separation to be capable of being
turned into divorce _a vinculo_ on the motion of either party at the
expiration of two years; and (_d_) County Court jurisdiction.
“_Judge Tindal Atkinson._--Would you give no damages against the
co-respondent?
“_The Witness._--I think it rather a barbarous custom.
“Then you leave the co-respondent without punishment?--I do not think
you leave him without punishment. He has social exposure. I think it
is more desirable to give no damages than to suggest that a man can
get another’s wife by paying for her.
“In reply to Mr. Burt, the witness said he did not think the Assize
Courts a good alternative to the County Courts.”
EVIDENCE OF MR. ATHERLEY-JONES.
Mr. Atherley-Jones, K.C., M.P., said he prepared a Bill some years
ago dealing with divorce. He came to the conclusion that subject
to limitations the conditions which now enabled a person to obtain
judicial separation should thenceforward be able to obtain divorce _a
vinculo_. His view was that jurisdiction over certain areas might be
conferred upon Judges selected from the County Courts.
APPENDIX B
CORONERS
The functions of a coroner are not, of course, peculiarly confined
to death inquisitions. They extend to inquiries in connection with
treasure trove, though the infrequency of such inquiries naturally
helps to obscure the coroner’s dual _rôle_ from the general public. The
following paragraph supplies a recent instance of an inquiry in respect
of treasure trove:
AN INQUEST ON COINS
“The coroner for the Thorpe division of Suffolk is to hold an inquest
to decide between two claims for the coins which were recently found
on the shore at Thorpeness, Suffolk. The Treasury claim them as
buried treasure, and the Receiver of Wrecks claims them as having
been washed ashore.
“Two black cinerary urns containing bones, a red earthenware Roman
vessel, and a black earthenware vessel, barrel-shaped and of drinking
tumbler size, were discovered on Saturday. It is thought that the
site of an old Roman burial-ground has been found. Throughout
yesterday hundreds of people visited Thorpeness on foot and by cycle,
in motorcars, and on horseback.”--_Daily Mail_, April 10th, 1911.
* * * * *
The senseless character, which a coroner’s inquest can sometimes
assume, is well brought out in a South American mummy case of a dozen
years ago:
“This institution”--the office of the coroner--“which some affect
to consider moribund, seems on the contrary to exhibit both the fire
of youth and the dignity of old age; see the South American mummy
case (Aitken _v._ London and North Western Railway, _The Times_,
December 11, 1901). This was an action against the railway company
for damages for negligence in the carriage of a Peruvian mummy,
which was broken in transit from South America to Belgium. In April,
1899, the package, sent from Liverpool, and addressed to ‘Maison
de Melle, Belgium,’ had been opened at Broad Street. An inquest
was held--verdict, ‘That the woman was found dead at the railway
goods-station on April 15, and did die on some date unknown in some
foreign country, probably South America, from some cause unknown.
No proofs of a violent death are found. The body has been dried and
buried in some foreign manner, probably sun-dried and cave-buried,
and the jurors are satisfied that this body does not show any recent
crime in this country, and that the deceased was unknown and about
twenty-five years of age.’” (Mr. A. T. Carter, D.C.L.).
* * * * *
An interesting fiction, connected with death, at any rate, if not with
coroners, though at a somewhat later period it would have come within
their cognizance, arose through the provisions of William the Conqueror
for the protection of his Norman followers. For every one killed, a
fine was imposed upon the hundred in which the body was found. By the
reign of Henry I., every dead man was presumed to be French, unless his
Englishry could be proved.
“A very neat doctrine for Revenue purposes, as the records show, for
if a stranger is found dead, who can prove that he is English?” (Mr.
A. T. Carter, D.C.L.).
* * * * *
The following newspaper report merits some further publicity:
“At an inquest at Southwark, the need of an early operation in
urgent circumstances was emphasised, and a doctor urged that the
time had come for a reform of the law which makes it impossible to
undertake any operation on a grievously injured child until its
parents have been approached, persuaded, and their consent wrung from
them.... A schoolboy of nine, John Joseph Huggins, of Haddon House,
St. George’s Road, had been riding behind a van, according to the
account of another small boy, and had fallen off before another van,
of which a wheel had passed over his leg.
“Dr. Fritz Kahlenberg, of Guy’s Hospital, said that when the father
was told that an operation was necessary he demurred for some time,
but eventually gave his consent. The witness thought doctors should
be able to operate if it was absolutely necessary without waiting
for consent. Time was everything in many cases, and if consent had
first to be obtained a life might be sacrificed. At Guy’s Hospital
they endeavoured to get the parents’ consent, and, failing the
parents, the nearest of kin. Some ignorant people had an idea that
an operation was an experiment, made for the doctors’ amusement. In
this case the operation was performed at night, and the surgeons were
engaged until five in the morning.
“Asked by the coroner whether he had any suggestion to make, Dr.
Kahlenberg said he thought that in such cases it should be enough if
two or three doctors agreed on the necessity of an operation.
“The Coroner said that perhaps some members of Parliament would take
the matter up. Dr. Kahlenberg, he observed, was suggesting a very
serious change in the law.
“The inquiry was adjourned to enable the father to find witnesses of
his son’s accident.”
APPENDIX C
THE ROYAL MARRIAGES ACT, 1772 12 Geo. 3, c. 11
_An Act for the better regulating of the future Marriages of the Royal
Family_
MOST GRACIOUS SOVEREIGN,
Whereas your Majesty, from paternal affection to your own family,
and from your royal concern for the future welfare of your people,
and the honour and dignity of your crown, was graciously pleased to
recommend to your Parliament to take into their serious consideration,
whether it might not be wise and expedient to supply the defect of
the laws now in being, and by some new provision more effectually to
guard the descendants of his late Majesty King George the Second (other
than the issue of princesses who have married, or who may hereafter
marry, into foreign families), from marrying without the approbation
of your Majesty, your heirs and successors, first had and obtained,
we have taken this weighty matter into our serious consideration; and
being sensible that marriages in the royal family are of the highest
importance to the state, and that therefore the kings of this realm
have ever been entrusted with the care and approbation thereof, and
being thoroughly convinced of the wisdom and expediency of what your
Majesty has thought fit to recommend upon this occasion; we, your
Majesty’s most dutiful and loyal subjects, the lords spiritual and
temporal, and commons, in this present Parliament assembled, do humbly
beseech your Majesty that it may be enacted and be it enacted, etc.
1. No descendant of the body of his late Majesty King George the
Second, male or female (other than the issue of princesses who have
married, or may hereafter marry, into foreign families), shall be
capable of contracting matrimony, without the previous consent of his
Majesty, his heirs or successors, signified under the great seal and
declared in council (which consent, to preserve the memory thereof, is
hereby directed to be set out in the license and register of marriage,
and to be entered in the books of the Privy Council); and [that] every
marriage or matrimonial contract, of any such descendant, without such
consent first had and obtained, shall be null and void to all intents
and purposes whatsoever.
2. Provided always ... that in case any such descendant of the body
of his late Majesty King George the Second, being above the age of
twenty-five years, shall persist in his or her resolution to contract
a marriage disapproved of, or dissented from, by the King, his heirs
or successors; that then such descendant, upon giving notice to the
King’s Privy Council, which notice is hereby directed to be entered
in the books thereof, may, at any time from the expiration of twelve
calendar months after such notice given to the Privy Council as
aforesaid, contract such marriage; and his or her marriage with the
person before proposed, and rejected, may be duly solemnized, without
the previous consent of his Majesty, his heirs or successors; and such
marriage shall be as good, as if this Act had never been made, unless
both Houses of Parliament shall, before the expiration of the said
twelve months, expressly declare their disapprobation of such intended
marriage.
3. And ... every person who shall knowingly and wilfully presume to
solemnize or to assist or be present at the celebration of any marriage
with any such descendant, or in his or her making any matrimonial
contract, without such consent as aforesaid first had and obtained,
except in the case above mentioned, shall being duly convicted thereof,
incur and suffer the pains and penalties ordained and provided by the
Statute of Provision and Premunire made in the sixteenth year of the
reign of King Richard the Second.
APPENDIX D
EXECUTIONS
The accompanying letter from Mr. A. Chichele Plowden, one of the
Metropolitan Police Magistrates, appeared in _The Times_ for December
20, 1910.
EXECUTIONS
_To the Editor of The Times_
SIR,--The interesting letters which have lately appeared in
your columns on the above subject were bound sooner or later
to resolve themselves into the one question of really national
importance--_viz._, whether or not capital punishment by hanging is
to be the last word of our civilization in dealing with the crime of
murder.
It is to the credit of Sir Henry Smith, whose letter you published
on Friday, that he is quick to recognize that this is the only thing
that signifies. Nor can it be said that there is any ambiguity
whatever in his own views on the subject.
Sir Henry is quite clear that all sympathy with murderers, even
in exceptional cases where they “suffer terribly,” is thrown away.
Generally speaking, they suffer very little--less than many innocent
people who die in their beds. Nevertheless the rope remains as the
great deterrent. The rope it is that is anticipated with terror.
If this is, as I believe it to be, a correct summary of Sir Henry’s
views, perhaps you will allow me, as a confirmed disbeliever in the
efficacy of capital punishment, to make one or two comments, not the
less true because they must often have been made before. People,
of course, are at liberty to think and believe that there would be
more murders than there are if hanging were abolished; but except
from analogy with foreign countries, notably, perhaps, with France,
where capital punishment, after being abolished, has recently been
restored, there is absolutely no evidence, nor in the nature of
things can there be any, to show that the rope is a deterrent.
If there are any whom the fear of it has deterred from murder,
they are and must remain an unknown quantity. All we know, as
distinguished from conjecture, is that crimes for which capital
punishment used to be the penalty have sensibly diminished, and that
murders continue to afflict society in quite sufficient numbers to
unnerve the more timid members of the community--the fear of death
notwithstanding.
It is a popular fallacy to regard a murderer as the worst of
criminals. The real truth is that in many cases it is hardly fair to
describe him as a criminal at all. There is nothing inconsistent,
human nature being what it is, in a man of blameless antecedents
being driven in a moment of frenzy into committing an act of violence
from which his whole soul would recoil in his saner moments.
No one who has not been through the fire can tell what may be the
effect on his self-control of a long course of studied insults and
provocation on the part of a worthless wife against her husband
persevered in day by day, for months and even years at a stretch.
Sir Henry Smith, in his virtuous indignation with Crippen, makes no
allowance for desperate circumstances like these. He is angry with
Crippen on account of his coolness in the witness-box, which he calls
an outrage, and he apparently regards it as a distinct aggravation
of his conduct that he should have sworn to love and cherish at the
altar the wife whom he subsequently put to death.
It is somewhat amazing to me that considerations such as these should
weigh for a moment in any just appreciation of Crippen’s character.
They seem to me absolutely irrelevant.
What Crippen actually did, and for which he suffered death, was to
kill a wife whom he hated for the sake of a woman whom he loved.
Probably of all the murders that are committed under the sun, in one
country or another, there is no more common type of murder than this.
It was the irony of Crippen’s fate that he did not meet No. 2 until
after he had met No. 1. Had such been his good fortune he would
probably have lived a life not better nor worse than his neighbours,
and have enjoyed with the best of them the reputation of a contented,
law-abiding citizen.
It must not be supposed from these observations that, the law of the
land being what it is, Crippen deserved a lesser punishment than he
received. All I am concerned with is to dispute that any fear of his
fate by hanging had any effect on his mind or intentions when he
resolved upon the murder of his wife.
It is quite clear that the deterrent effect was _nil_, as it was
in the case of Dickman, of Cream, and the host of other murderers,
who, with a full appreciation that they may ultimately be hung,
have nevertheless not hesitated to do away with the lives of their
victims, and to run the risk.
I am convinced from such experience as I have had of Criminal Courts,
extending over many years, that what a man murderously inclined
really dreads is not death, but pain.
The spectre of death, though it can always be conjured up, is too
remote and shadowy to have much effect on the nerves of a man in the
enjoyment of a full and vigorous health. Not so with pain. There is
no imagination so dull that it cannot take in the terrors of the
“cat;” and I believe if such a punishment could be made part of the
sentence, even without abolishing capital punishment, the deterrent
effect would be unmistakable.
I think even Crippen’s courage, wonderful as it was, would have
quailed on that dark and wintry morning had he known that he would
have had to endure a flogging before he was hung. And had he been
asked which he feared most--the physical pain of the lash or the
death to follow--can any one doubt what his answer would have been?
I am, Sir, your obedient servant,
A. CHICHELE PLOWDEN.
Marylebone Police Court.
* * * * *
“The Home Secretary states in a printed reply to Mr. Palmer that of the
24 men and 4 women sentenced to death in 1910, 16 men were executed,
as compared with 27 men and 4 women sentenced to death in 1909, 19 men
being executed. In 1908, 23 men and 2 women were sentenced to death, 12
men suffering the extreme penalty. One man sentenced to death in 1908
was executed in 1909.” (_Daily Newspaper._)
APPENDIX E
AN ENGLISH LEGITIMATION BILL
Since the chapter on legitimation was written, the writer has come
across a House of Commons Bill, which substantially endorses his views
on the subject. It is as follows:--
_A Bill to Amend the Law of Husband and Wife_
A.D. 1910
WHEREAS it is expedient to amend the law of husband and wife:
Be it therefore enacted by the King’s most Excellent Majesty, by and
with the advice and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by the authority
of the same, as follows:--
_Power of wife to petition for divorce_
=1.= Notwithstanding anything in the Matrimonial Causes Act, 1857, or
any other Act contained, it shall be lawful for any wife to present
a petition to the Court praying that her marriage shall be dissolved
on the ground that since the celebration thereof her husband has been
guilty of adultery.
For the purposes of this section the expression “Court” shall mean
the Court for Divorce and Matrimonial Causes.
_Guardianship of children_
=2.= A wife shall be the joint guardian with her husband of any
children of the marriage, and, in every case arising under any
statute or otherwise, shall have an equal power with the husband in
any matter concerning their education, upbringing, or welfare.
In case of disagreement between the parties either party may apply
to the Court, who shall make such order as, having regard to all
the circumstances before it and to the general well-being of the
children, it shall think proper. There shall be no appeal from such
order except by leave of the Court, but the Court may at any time, at
the instance of either party, with or without hearing fresh evidence,
rescind or vary such order in such manner as it shall think proper.
_Children to be legitimised by marriage_
=3.= Marriage before and after _the passing of this Act_ shall
operate to legitimise any children previously born to the parties to
such marriage.
_Short Title_
=4.= This Act may be cited as the Marriage Law Amendment Act, 1910.
APPENDIX F
THE CRIMINAL APPEAL ACT, 1907
COURT OF CRIMINAL APPEAL
=1.= (1) There shall be a Court of Criminal Appeal, and the Lord
Chief Justice of England and eight judges of the King’s Bench
Division of the High Court, appointed for the purpose by the Lord
Chief Justice with the consent of the Lord Chancellor for such period
as he thinks desirable in each case, shall be the judges of that
court.
(2) For the purpose of hearing and determining appeals under
this Act, and for the purpose of any other proceedings under this
Act, the Court of Criminal Appeal shall be summoned in accordance
with directions given by the Lord Chief Justice of England with
the consent of the Lord Chancellor and the court shall be duly
constituted if it consists of not less than three judges and of an
uneven number of judges.
If the Lord Chief Justice so directs, the court may sit in two or
more divisions.
The court shall sit in London except in cases where the Lord Chief
Justice gives special directions that it shall sit at some other
place.
(3) The Lord Chief Justice, if present, and in his absence the senior
member of the court, shall be president of the court.
(4) The determination of any question before the Court of Criminal
Appeal shall be according to the opinion of the majority of the
members of the court hearing the case.
(5) Unless the court direct to the contrary in cases where, in the
opinion of the court, the question is a question of law on which it
would be convenient that separate judgments should be pronounced
by the members of the court, the judgment of the court shall be
pronounced by the president of the court or such other member of the
court hearing the case as the president of the court directs, and no
judgment with respect to the determination of any question shall be
separately pronounced by any other member of the court.
[39](6) If in any case the director of public prosecutions
or the prosecutor or defendant obtains the certificate of the
Attorney-General that the decision of the Court of Criminal Appeal
involves a point of law of exceptional public importance, and that it
is desirable in the public interest that a further appeal should be
brought, he may appeal from that decision to the House of Lords, but
subject thereto the determination by the Court of Criminal Appeal of
any appeal or other matter which it has power to determine shall be
final, and no appeal shall lie from that court to any other court.
(7) The Court of Criminal Appeal shall be a superior court of record,
and shall, for the purposes of and subject to the provisions of this
Act, have full power to determine, in accordance with this Act, any
questions necessary to be determined for the purpose of doing justice
in the case before the court.
(8) Rules of court shall provide for securing sittings of the Court
of Criminal Appeal, if necessary, during vacation.
(9) Any direction which may be given by the Lord Chief Justice under
this section may, in the event of any vacancy in that office, or in
the event of the incapacity of the Lord Chief Justice to act from any
reason, be given by the senior judge of the Court of Criminal Appeal.
=2.= There shall be a Registrar of the Court of Criminal Appeal (in
this Act referred to as the Registrar) who shall be appointed by
the Lord Chief Justice from among the Masters of the Supreme Court
acting in the King’s Bench Division, and shall be entitled to such
additional salary (if any), and be provided with such additional
staff (if any), in respect of the office of registrar as the Lord
Chancellor, with the concurrence of the Treasury, may determine.
The senior Master of the Supreme Court shall be the first Registrar.
RIGHT OF APPEAL AND DETERMINATION OF APPEALS.
=3.= A person convicted on indictment may appeal under this Act to
the Court of Criminal Appeal--
(_a_) against a conviction on any ground of appeal which involves a
question of law alone, and
(_b_) with the leave of the Court of Criminal Appeal or upon the
certificate of the Judge who tried him that it is a fit case
for appeal against his conviction on any ground of appeal
which involves a question of fact alone, or a question of
mixed law and fact, or any other ground which appears to the
court to be a sufficient ground of appeal, and
(_c_) with the leave of the Court of Criminal Appeal against the
sentence passed on his conviction unless the sentence is one
fixed by law.
=4.= (1) The Court of Criminal Appeal on any such appeal against
conviction shall allow the appeal if they think that the verdict of
the jury should be set aside on the ground that it is unreasonable
or cannot be supported having regard to the evidence, or that the
judgment of the court before whom the appellant was convicted should
be set aside on the ground of a wrong decision of any question of
law, or that on any ground there was a miscarriage of justice, and in
any other case shall dismiss the appeal.
Provided that the court may, notwithstanding that they are of opinion
that the point raised in the appeal might be decided in favour of the
appellant, dismiss the appeal if they consider that no substantial
miscarriage of justice has occurred.
(2) Subject to the special provisions of this Act, the Court of
Criminal Appeal shall, if they allow an appeal against conviction,
quash the conviction and direct a judgment and verdict of acquittal
to be entered.
(3) On an appeal against sentence the Court of Criminal Appeal
shall, if they think that a different sentence should have been
passed, quash the sentence passed at the trial, and pass such other
sentence warranted in law by the verdict (whether more or less
severe) in substitution therefor as they think ought to have been
passed, and in any other case shall dismiss the appeal.
=5.= (1) If it appears to the Court of Criminal Appeal that an
appellant, though not properly convicted on some count or part of the
indictment, has been properly convicted on some other count or part
of the indictment, the court may either affirm the sentence passed
on the appellant at the trial, or pass such sentence in substitution
therefor as they think proper, and as may be warranted in law by the
verdict on the count or part of the indictment on which the court
consider that the appellant has been properly convicted.
(2) Where an appellant has been convicted of an offence and the jury
could on the indictment have found him guilty of some other offence,
and on the finding of the jury it appears to the Court of Criminal
Appeal that the jury must have been satisfied of the facts which
proved him guilty of that other offence, the court may, instead of
allowing or dismissing the appeal, substitute for the verdict found
by the jury a verdict of guilty of that other offence, and pass such
sentence in substitution for the sentence passed at the trial as may
be warranted in law for that other offence, not being a sentence of
greater severity.
(3) Where on the conviction of the appellant the jury have found
a special verdict, and the Court of Criminal Appeal consider that
a wrong conclusion has been arrived at by the court before which
the appellant has been convicted on the effect of that verdict, the
Court of Criminal Appeal may, instead of allowing the appeal, order
such conclusion to be recorded as appears to the court to be in law
required by the verdict, and pass such sentence in substitution for
the sentence passed at the trial as may be warranted in law.
(4) If on any appeal it appears to the Court of Criminal Appeal that,
although the appellant was guilty of the act or omission charged
against him, he was insane at the time the act was done or omission
made so as not to be responsible according to law for his actions,
the court may quash the sentence passed at the trial and order the
appellant to be kept in custody as a criminal lunatic under the Trial
of Lunatics Act, 1883, in the same manner as if a special verdict had
been found by the jury under that Act.
=6.= The operation of any order for the restitution of any property
to any person made on a conviction on indictment, and the operation
in case of any such conviction, of the provisions of subsection (1)
of section twenty-four of the Sale of Goods Act, 1893, as to the
re-vesting of the property in stolen goods on conviction, shall
(unless the Court before whom the conviction takes place direct to
the contrary in any case in which, in their opinion, the title to the
property is not in dispute) be suspended--
(_a_) in any case until the expiration of ten days after the date
of conviction, and
(_b_) in cases where notice of appeal or leave to appeal is given
within ten days after the date of conviction, until the
determination of the appeal;
and in cases where the operation of any such order, or the operation
of the said provisions, is suspended until the determination of the
appeal, the order or provisions, as the case may be, shall not take
effect as to the property in question if the conviction is quashed on
appeal. Provision may be made by rules of court for securing the safe
custody of any property, pending the suspension of the operation of
any such order of the said provisions.
(2) The Court of Criminal Appeal may by order annul or vary any order
made on a trial for the restitution of any property to any person,
although the conviction is not quashed; and the order, if annulled,
shall not take effect, and, if varied, shall take effect as so varied.
PROCEDURE
=7.= (1) Where a person convicted desires to appeal under this Act to
the Court of Criminal Appeal, or to obtain the leave of that Court to
appeal, he shall give notice of appeal or notice of his application
for leave to appeal in such manner as may be directed by rules of
court within ten days of the date of conviction. Such rules shall
enable any convicted person to present his case and his argument in
writing instead of by oral argument if he so desires. Any case or
argument so presented shall be considered by the court.
Except in the case of a conviction involving sentence of death, the
time within which notice of appeal or notice of an application for
leave to appeal may be given, may be extended at any time by the
Court of Criminal Appeal.
(2) In the case of a conviction involving sentence of death or
corporal punishment--
(_a_) the sentence shall not in any case be executed until after
the expiration of the time within which notice of appeal or
an application for leave to appeal may be given under this
section, and
(_b_) if notice is so given, the appeal or application shall
be heard and determined with as much expedition as
practicable, and the sentence shall not be executed until
after the determination of the appeal, or, in cases where an
application for leave to appeal is finally refused, of the
application.
=8.= The judge or chairman of any court before whom a person is
convicted shall, in the case of an appeal under this Act against the
conviction or against the sentence, or in the case of an application
for leave to appeal under this Act, furnish to the Registrar, in
accordance with rules of court, his notes of the trial; and shall
furnish to the Registrar in accordance with rules of court a report
giving his opinion upon the case or upon any point arising in the
case.
=9.= For the purposes of this Act, the Court of Criminal Appeal may,
if they think it necessary or expedient in the interest of justice,--
(_a_) order the production of any document, exhibit, or other thing
connected with the proceedings, the production of which
appears to them necessary for the determination of the case,
and
(_b_) if they think fit order any witnesses who would have been
compellable witnesses at the trial to attend and be examined
before the court, whether they were or were not called at
the trial, or order the examination of any such witnesses
to be conducted in manner provided by rules of court before
any judge of the court or before any officer of the court or
justice of the peace or other person appointed by the court
for the purpose, and allow the admission of any depositions
so taken as evidence before the court, and
(_c_) if they think fit receive the evidence, if tendered, of
any witness (including the appellant) who is a competent
but not compellable witness, and, if the appellant makes an
application for the purpose, of the husband or wife of the
appellant, in cases where the evidence of the husband or wife
could not have been given at the trial except on such an
application, and
(_d_) where any question arising on the appeal involves prolonged
examination of documents or accounts, or any scientific or
local investigation, which cannot in the opinion of the
court conveniently be conducted before the court, order
the reference of the question in manner provided by rules
of court for inquiry and report to a special commissioner
appointed by the court, and act upon the report of any such
commissioner so far as they think fit to adopt it, and
(_e_) appoint any person with special expert knowledge to act as
assessor to the court in any case where it appears to the
court that such special knowledge is required for the proper
determination of the case;
and exercise in relation to the proceedings of the court any other
powers which may for the time being be exercised by the Court of
Appeal on appeals in civil matters, and issue any warrants necessary
for enforcing the orders or sentences of the court: Provided that in
no case shall any sentence be increased by reason or in consideration
of any evidence that was not given at the trial.
=10.= The Court of Criminal Appeal may at any time assign to an
appellant a solicitor and counsel or counsel only in any appeal or
proceedings preliminary or incidental to an appeal in which, in
the opinion of the court, it appears desirable in the interests of
justice that the appellant should have legal aid, and that he has not
sufficient means to enable him to obtain that aid.
=11.= (1) An appellant, notwithstanding that he is in custody, shall
be entitled to be present, if he desires it, on the hearing of
his appeal, except where the appeal is on some ground involving a
question of law alone, but, in that case and on an application for
leave to appeal and on any proceedings preliminary or incidental to
an appeal, shall not be entitled to be present, except where rules of
court provide that he shall have the right to be present, or where
the court gives him leave to be present.
(2) The power of the court to pass any sentence under this Act may be
exercised notwithstanding that the appellant is for any reason not
present.
=12.= It shall be the duty of the Director of Public Prosecutions
to appear for the Crown on every appeal to the Court of Criminal
Appeal under this Act, except so far as the solicitor of a
Government department, or a private prosecutor in the case of a
private prosecution, undertakes the defence of the appeal, and the
Prosecution of Offences Act, 1879, shall apply as though the duty of
the Director of Public Prosecutions under this section were a duty
under section two of that Act, and provision shall be made by rules
of court for the transmission to the Director of Public Prosecutions
of all such documents, exhibits, and other things connected with the
proceedings as he may require for the purpose of his duties under
this section.
=13.= (1) On the hearing and determination of an appeal or any
proceedings preliminary or incidental thereto under this Act no costs
shall be allowed on either side.
(2) The expenses of any solicitor or counsel assigned to an
appellant under this Act, and the expenses of any witnesses attending
on the order of the court or examined in any proceedings incidental
to the appeal, and of the appearance of an appellant on the hearing
of his appeal or on any proceedings preliminary or incidental to
the appeal, and all expenses of and incidental to any examination
of witnesses conducted by any person appointed by the court for the
purpose, or any reference of a question to a special commissioner
appointed by the court, or of any person appointed as assessor to the
court, shall be defrayed, up to an amount allowed by the court, but
subject to any regulations as to rates and scales of payment made
by the Secretary of State, in the same manner as the expenses of a
prosecution in cases of felony.
=14.= (1) An appellant who is not admitted to bail shall, pending
the determination of his appeal, be treated in such manner as may be
directed by prison rules within the meaning of the Prison Act, 1898.
(2) The Court of Criminal Appeal may, if it seems fit, on the
application of an appellant, admit the appellant to bail pending the
determination of his appeal.
(3) The time during which an appellant, pending the determination of
his appeal, is admitted to bail, and subject to any directions which
the Court of Criminal Appeal may give to the contrary on any appeal,
the time during which the appellant, if in custody, is specially
treated as an appellant under this section, shall not count as part
of any term of imprisonment or penal servitude under his sentence,
and, in the case of an appeal under this Act, any imprisonment or
penal servitude under the sentence, of the appellant, whether it is
the sentence passed by the court of trial or the sentence passed by
the Court of Criminal Appeal, shall, subject to any directions which
may be given by the Court as aforesaid, be deemed to be resumed or to
begin to run, as the case requires, if the appellant is in custody,
as from the day on which the appeal is determined, and, if he is not
in custody, as from the day on which he is received into prison under
the sentence.
(4) Where a case is stated under the Crown Cases Act, 1848, this
section shall apply to the person in relation to whose conviction the
case is stated as it applies to an appellant.
(5) Provision shall be made by prison rules within the meaning of
the Prison Act, 1898, for the manner in which an appellant, when in
custody, is to be brought to any place at which he is entitled to be
present for the purposes of this Act, or to any place to which the
Court of Criminal Appeal or any judge thereof may order him to be
taken for the purpose of any proceedings of that court, and for the
manner in which he is to be kept in custody while absent from prison
for the purpose; and an appellant whilst in custody in accordance
with those rules shall be deemed to be in legal custody.
=15.= (1) The registrar shall take all necessary steps for obtaining
a hearing under this Act of any appeals or applications, notice of
which is given to him under this Act, and shall obtain and lay before
the court in proper form all documents, exhibits, and other things
relating to the proceedings in the court before which the appellant
or applicant was tried which appear necessary for the proper
determination of the appeal or application.
(2) If it appears to the registrar that any notice of an appeal
against a conviction purporting to be on a ground of appeal which
involves a question of law alone does not show any substantial ground
of appeal, the registrar may refer the appeal to the court for
summary determination, and, where the case is so referred, the court
may, if they consider that the appeal is frivolous or vexatious, and
can be determined without adjourning the same for a full hearing,
dismiss the appeal summarily, without calling on any persons to
attend the hearing or to appear for the Crown thereon.
(3) Any documents, exhibits, or other things connected with the
proceedings on the trial of any person on indictment, who, if
convicted, is entitled or may be authorised to appeal under this Act,
shall be kept in the custody of the court of trial in accordance with
rules of court made for the purpose, for such time as may be provided
by the rules, and subject to such power as may be given by the rules
for the conditional release of any such documents, exhibits, or
things from that custody.
(4) The registrar shall furnish the necessary forms and instructions
in relation to notices of appeal or notices of application under
this Act to any person who demands the same, and to officers of
courts, governors of prisons, and such other officers or persons as
he thinks fit, and the governor of a prison shall cause those forms
and instructions to be placed at the disposal of prisoners desiring
to appeal or to make any application under this Act, and shall cause
any such notice given by a prisoner in his custody to be forwarded on
behalf of the prisoner to the registrar.
(5) The registrar shall report to the court or some judge thereof any
case in which it appears to him that, although no application has
been made for the purpose, a solicitor and counsel or counsel only
ought to be assigned to an appellant under the powers given to the
Court by this Act.
=16.= (1) Shorthand notes shall be taken of the proceedings at the
trial of any person on indictment who, if convicted, is entitled
or may be authorised to appeal under this Act, and, on any appeal
or application for leave to appeal, a transcript of the notes, or
any part thereof, shall be made if the registrar so directs, and
furnished to the registrar for the use of the Court of Criminal
Appeal or any judge thereof: Provided that a transcript shall be
furnished to any party interested upon the payment of such charges as
the Treasury may fix.
(2) The Secretary of State may also, if he thinks fit in any case,
direct a transcript of the shorthand notes to be made and furnished
to him for his use.
(3) The cost of taking any such shorthand notes, and of any
transcript where a transcript is directed to be made by the registrar
or by the Secretary of State, shall be defrayed, in accordance with
scales of payment fixed for the time being by the Treasury, out of
moneys provided by Parliament, and rules of court may make such
provision as is necessary for securing the accuracy of the notes to
be taken and for the verification of the transcript.
=17.= The powers of the Court of Criminal Appeal under this Act
to give leave to appeal, to extend the time within which notice
of appeal or of an application for leave to appeal may be given,
to assign legal aid to an appellant, to allow the appellant to be
present at any proceedings in cases where he is not entitled to be
present without leave, and to admit an appellant to bail, may be
exercised by any judge of the Court of Criminal Appeal in the same
manner as they may be exercised by the Court, and subject to the same
provisions; but, if the judge refuses an application on the part of
the appellant to exercise any such power in his favour, the appellant
shall be entitled to have the application determined by the Court of
Criminal Appeal as duly constituted for the hearing and determining
of appeals under this Act.
=18.= (1) Rules of court for the purposes of this Act shall be
made, subject to the approval of the Lord Chancellor, and so far
as the rules affect the governor or any other officer of a prison,
or any officer having the custody of an appellant, subject to the
approval also of the Secretary of State, by the Lord Chief Justice
and the judges of the Court of Criminal Appeal, or any three of such
judges, with the advice and assistance of the Committee hereinafter
mentioned. Rules so made may make provision with respect to any
matter for which provision is to be made under this Act by rules of
court, and may regulate generally the practice and procedure under
this Act, and the officers of any court before whom an appellant has
been convicted, and the governor or other officers of any prison
or other officer having the custody of an appellant and any other
officers or persons, shall comply with any requirements of those
rules so far as they affect those officers or persons, and compliance
with those rules may be enforced by order of the Court of Criminal
Appeal.
(2) The committee hereinbefore referred to shall consist of a
chairman of quarter sessions appointed by a Secretary of State, the
Permanent Under Secretary of State for the time being for the Home
Department, the Director of Public Prosecutions for the time being,
the Registrar of the Court of Criminal Appeal, and a clerk of assize,
and a clerk of the peace appointed by the Lord Chief Justice, and a
solicitor appointed by the President of the Law Society for the time
being, and a barrister appointed by the General Council of the Bar.
The term of office of any person who is a member of the Committee
by virtue of appointment shall be such as may be specified in the
appointment.
(3) Every rule under this Act shall be laid before each House of
Parliament forthwith, and, if any address is presented to His Majesty
by either House of Parliament within the next subsequent thirty days
on which the House has sat next after any such rule is laid before
it, praying that the rule may be annulled, His Majesty in Council
may annul the rule, and it shall thenceforth be void, but without
prejudice to the validity of anything previously done thereunder.
SUPPLEMENTAL
=19.= Nothing in this Act shall affect the prerogative of mercy, but
the Secretary of State on the consideration of any petition for the
exercise of His Majesty’s mercy, having reference to the conviction
of a person on indictment or to the sentence (other than sentence of
death) passed on a person so convicted, may, if he thinks fit, at any
time either--
(_a_) refer the whole case to the Court of Criminal Appeal, and
the case shall then be heard and determined by the Court
of Criminal Appeal as in the case of an appeal by a person
convicted, or
(_b_) if he desires the assistance of the Court of Criminal
Appeal on any point arising in the case with a view to the
determination of the petition, refer that point to the
Court of Criminal Appeal for their opinion thereon, and the
Court shall consider the point so referred and furnish the
Secretary of State with their opinion thereon accordingly.
=20.= (1) Writs of error, and the powers and practice now existing in
the High Court in respect of motions for new trials or the granting
thereof in criminal cases, are hereby abolished.
(2) This Act shall apply in the case of convictions on criminal
informations and coroners’ inquisitions and in cases where a person
is dealt with by a court of quarter sessions as an incorrigible
rogue under the Vagrancy Act, 1824, as it applies in the case of
convictions on indictments, but shall not apply in the case of
convictions on indictments or inquisitions charging any peer or
peeress, or other person claiming the privilege of peerage, with any
offence not now lawfully triable by a court of assize.
(3) Notwithstanding anything in any other Act, an appeal shall lie
from a conviction on indictment at common law in relation to the
non-repair or obstruction of any highway, public bridge, or navigable
river in whatever court the indictment is tried, in all respects
as though the conviction were a verdict in a civil action tried at
assize, and shall not lie under this Act.
(4) All jurisdiction and authority under the Crown Cases Act, 1848,
in relation to questions of law arising in criminal trials which is
transferred to the judges of the High Court by section forty-seven
of the Supreme Court of Judicature Act, 1873, shall be vested in the
Court of Criminal Appeal under this Act, and in any case where a
person convicted appeals under this Act against his conviction on any
ground of appeal which involves a question of law alone, the Court
of Criminal Appeal may, if they think fit, decide that the procedure
under the Crown Cases Act, 1848, as to the statement of a case should
be followed, and require a case to be stated accordingly under that
Act in the same manner as if a question of law had been reserved.
=21.= In this Act, unless the context otherwise requires--
The expression “appellant” includes a person who has been
convicted and desires to appeal under this Act, and
The expression “sentence” includes any order of the court made on
conviction with reference to the person convicted or his wife or
children, and any recommendation of the court as to the making
of an expulsion order in the case of a person convicted, and the
power of the Court of Criminal Appeal to pass a sentence includes a
power to make any such order of the court or recommendation, and a
recommendation so made by the Court of Criminal Appeal shall have
the same effect for the purposes of section three of the Aliens
Act, 1905, as the certificate and recommendation of the convicting
Court.
=22.= The Acts specified in the schedule of this Act are hereby
repealed to the extent mentioned in the third column of that schedule.
=23.= (1) This Act may be cited as the Criminal Appeal Act, 1907.
(2) This Act shall not extend to Scotland or Ireland.
(3) This Act shall apply to all persons convicted after the
eighteenth day of April, nineteen hundred and eight, but shall not
affect the rights, as respects appeal, of any persons convicted on or
before that date.
(The enactments affected by the schedule of repeal are four in number,
namely, the Treason Act, 1695, the Crown Cases Act, 1848, and the two
Supreme Court of Judicature Acts of 1875, and 1881, respectively.)
FOOTNOTE
[39] It was under this section that the notorious murderer, S.
Morrison, or Morris Stein, endeavoured to carry his appeal to the House
of Lords, but the Attorney-General (Sir Rufus Isaacs) refused the
necessary certificate.
APPENDIX G
THE CORONATION OATH OF KING GEORGE V
The Coronation Oath of King George V. is identical with that of Queen
Victoria save in respect of reference to the Church of Ireland:--
THE OATH
¶ His Majesty having already on Monday, the 6th day of February,
1911, in the presence of the two Houses of Parliament, made and
signed the Declaration prescribed, the Archbishop shall, after the
Sermon is ended, go to the King, and standing before him, administer
the Coronation Oath, first asking the King,
Sir, is your Majesty willing to take the Oath?
¶ And the King answering,
I am willing,
¶ The Archbishop shall minister these questions; and the King, having
a book in his hands, shall answer each question severally as follows:
_Archbishop._ Will you solemnly promise and swear to govern the
people of this United Kingdom of _Great Britain_ and _Ireland_,
and the Dominions thereto belonging, according to the Statutes in
Parliament agreed on, and the respective Laws and Customs of the same?
_King._ I solemnly promise so to do.
_Archbishop._ Will you to your power cause Law and Justice, in Mercy,
to be executed in all your judgments?
_King._ I will.
_Archbishop._ Will you to the utmost of your power maintain the
Laws of God, the true profession of the Gospel, and the Prostestant
Reformed Religion established by law? And will you maintain and
preserve inviolably the settlement of the Church of _England_, and
the doctrine, worship, discipline, and government thereof, as by law
established in _England_? And will you preserve unto the Bishops
and Clergy of _England_, and to the Churches there committed to
their charge, all such rights and privileges, as by law do or shall
appertain to them, or any of them?
_King._ All this I promise to do.
[Sidenote: The Bible to be brought;]
¶ Then the King arising out of his chair, supported as before, and
assisted by the Lord Great Chamberlain, the Sword of State being
carried before him, shall go to the Altar, and there being uncovered,
make his solemn Oath in the sight of all the people, to observe the
premisses: laying his right hand upon the Holy Gospel in the great
Bible (which was before carried in the Procession and is now brought
from the Altar by the Archbishop, and tendered to him as he kneels
upon the steps), saying these words:
The things which I have here before promised, I will perform, and
keep.
So help me God.
[Sidenote: And a silver Standish.]
¶ Then the King shall kiss the Book, and sign the Oath.
* * * * *
It is, perhaps, interesting to note that neither the Proclamation,
Accession, Declaration, or Coronation, of a King in any way improves
his legal kingship: he is King from the moment his predecessor’s life
is extinct. Hence the legal saying, “The King never dies.” It was
anomalous for certain official persons in the City of London to address
his Majesty the King as “Prince,” in condoling with him on the death
of King Edward VII., immediately after the event. It was likewise
technically incorrect to refer to the decease of “the King of Portugal
and of the Crown Prince”--at the time of the assassinations. The latter
survived his father by a minute or so, and he, therefore, died a King.
* * * * *
The accompanying paragraph from the _Coronation Service_, by the Rev.
Joseph H. Pemberton, contains some information:
“As to the authority by which the Coronation Service is from time to
time revised. An order is made by the King in Council directing the
Archbishop of Canterbury to prepare a ‘Form and Order,’ due attention
being given to the wishes of the Sovereign on points of detail. But
the Archbishop has also a duty to perform to the Church, that nothing
shall be omitted which through many generations has been held as
essential to the validity of the Service, a Service by which, through
the administration of the outward and visible sign of Holy Unction,
the inward and spiritual grace of the Holy Spirit is conveyed to the
Sovereign for the office and work of a King or Queen in this realm
under the Catholic Church of Christ. For it cannot be too often
repeated in these days that the Coronation of a King is not a civil
ceremony, but a religious service, for the purpose of the setting
apart of a person for a particular and holy office. The King at his
Accession becomes the people’s accepted Sovereign, at his Coronation
he becomes the Lord’s Anointed, holding his divine office as the
representative, the agent, to the people of this realm, of the King
of kings and Lord of lords.”
APPENDIX H
THE POOR PRISONERS’ DEFENCE ACT, THE PERJURY BILL, AND THE CRIMINAL
EVIDENCE ACT
I. THE POOR PRISONERS’ DEFENCE ACT
An extremely short enactment, interesting from several points of view,
is that which deals with the defence of poor prisoners. In itself it
is scarcely anomalous, though the necessity for a poor prisoner to
satisfy the committing justices or the judge of a court of assize, or
chairman of a court of quarter sessions that he, the prisoner, comes
within the meaning of the Act, sometimes tends to produce difficulty
and obstruction. The Act reads:--
AN ACT TO MAKE PROVISION FOR THE DEFENCE OF POOR PRISONERS.
(14th August, 1903)
Be it enacted by the King’s most Excellent Majesty, by and with the
advice and consent of the Lords Spiritual and Temporal, and Commons,
in this present Parliament assembled, and by the authority of the
same, as follows:--
=1.= (1) Where it appears, having regard to the nature of the
defence set up by any poor prisoner, as disclosed in the evidence
given or statement made by him before the committing justices, that
it is desirable in the interests of justice that he should have legal
aid in the preparation and conduct of his defence, and that his means
are insufficient to enable him to obtain such aid--
(_a_) the committing justices, upon the committal of the prisoner
for trial, or
(_b_) the judge of a court of assize or chairman of a court of
quarter sessions, at any time after reading the depositions,
may certify that the prisoner ought to have such legal aid, and
thereupon the prisoner shall be entitled to have a solicitor and
counsel assigned to him, subject to the provisions of this Act.
(2) The expenses of the defence, including the cost of a copy of the
depositions, the fees of solicitor and counsel, and the expenses of
any witnesses shall be allowed and paid in the same manner as the
expenses of a prosecution in cases of indictment for felony, subject,
nevertheless, to any rules under this Act and to any regulations
as to rates or scales of payment which may be made by one of His
Majesty’s Principal Secretaries of State.
=2.= Rules for carrying this Act into effect may be made in the
same manner and subject to the same conditions as Rules under the
Prosecution of Offences Act, 1879.
=3.= In this Act--
“Prisoner” includes a person committed for trial on bail.
“Committing justices” includes a magistrate of the police courts of
the metropolis and a stipendiary magistrate.
“Chairman” includes recorder or deputy recorder or deputy chairman.
=4.= This Act shall not extend to Scotland or Ireland.
=5.= This Act may be cited as the Poor Prisoners’ Defence Act,
1903, and shall come into operation on the first day of January one
thousand nine hundred and four.
The Act is straightforward and clear in its wording, but it seems to
leave something unsaid in its provision for establishing the prisoner’s
insufficiency of means to maintain his defence. The functionary who
has to decide whether or not the prisoner’s poverty is genuine does
not seem to be given any special standard by which to govern his
decision. The responsibility of using public funds where there may be
no real justification must influence him towards excessive caution.
It would be better to make it perfectly plain what would constitute
justification. A judge or quasi-judicial functionary, may be guided
by his own intelligence, so far as he can apply it to the prisoner’s
circumstances, but it may thus involve more time and consideration
to arrive at a proper estimate of the truth than the case is worth.
On the other hand, the prisoner and the police may, and probably do,
conflict in their statements. What is to be done? There is no solution,
unless it be, where the prisoner has got as far as quarter sessions or
the assize, to set the man’s case back, pending the submission of an
affidavit from a police officer deputed to make reasonable inquiry into
the prisoner’s means and resources. Where there is no evidence of funds
put by, an affidavit to this effect should satisfy the recorder, or
judge, in the matter of providing for the defence. In a case where the
prisoner requests legal aid in the police court, a similar principle
could be applied. A police affidavit would be useful as a record.
II. THE PERJURY BILL
A short Bill “to consolidate and simplify the law relating to perjury
and kindred offences,” to be known to future generations as the Perjury
Act, 1911, has recently left the printer. Its sponsor is the Lord
High Chancellor, and its provisions are not without interest to the
general public. It is made up of nineteen clauses and a schedule. It
is proposed to here transcribe it bodily. The Bill, after reciting the
formula of Royal and Parliamentary enactment, runs as follows:--
=1.=--(1) If any person lawfully sworn as a witness or as an
interpreter in a judicial proceeding wilfully makes a statement
material in that proceeding, which he knows to be false or does not
believe to be true, he shall be guilty of perjury, and shall on
conviction thereof on indictment be liable to penal servitude for a
term not exceeding seven years, or to imprisonment with or without
hard labour for a term not exceeding two years, or to a fine or to
both such penal servitude or imprisonment and fine.
(2) The expression “judicial proceeding” includes a proceeding before
any court, tribunal, or person having by law power to hear, receive,
and examine evidence on oath.
(3) Where a statement made for the purposes of a judicial proceeding
is not made before the tribunal itself, but is made on oath before
a person authorised by law to administer an oath to the person who
makes the statement, and to record or authenticate the statement, it
shall for the purposes of this section be treated as having been made
in a judicial proceeding.
(4) A statement made by a person lawfully sworn in England or Ireland
for the purposes of a judicial proceeding--
(_a_) in another part of His Majesty’s dominions, or
(_b_) in a British tribunal lawfully constituted in any place by
sea or land outside His Majesty’s dominions, or
(_c_) in a tribunal of any foreign state,
shall for the purpose of this section be treated as a statement made
in a judicial proceeding in England or Ireland.
(5) Where for the purposes of a judicial proceeding in England or
Ireland, a person is lawfully sworn under the authority of an Act of
Parliament--
(_a_) in any other part of His Majesty’s dominions, or
(_b_) before a British tribunal or a British officer in a foreign
country, or within the jurisdiction of the Admiralty of England,
a statement made by such person so sworn as aforesaid (unless the
Act of Parliament under which it was made otherwise specifically
provides) shall be treated for the purposes of this section as having
been made in the judicial proceeding in England or Ireland for the
purposes whereof it was made.
(6) The question whether a statement on which perjury is assigned was
material is a question of law to be determined by the court of trial.
=2.= If any person--
(1) being required or authorised by law to make any statement on
oath for any purpose, and being lawfully sworn (otherwise than
in a judicial proceeding) wilfully makes a statement which is
material for that purpose and which he knows to be false or
does not believe to be true, or
(2) wilfully uses any false affidavit for the purposes of the Bill
of Sale Act, 1878, as amended by any subsequent enactment,
he shall be guilty of a misdemeanour, and on conviction thereof
on indictment shall be liable to penal servitude for a term not
exceeding seven years or to imprisonment, with or without hard
labour, for a term not exceeding two years, or to a fine or to both
such penal servitude or imprisonment and fine.
=3.= (1) If any person--
(_a_) for the purpose of procuring a marriage, or a certificate
or license for marriage, knowingly and wilfully makes a
false oath, or makes or signs a false declaration, notice or
certificate required under any Act of Parliament for the time
being in force relating to marriage, or
(_b_) knowingly and wilfully makes, or knowingly and wilfully
causes to be made, for the purpose of being inserted in any
register of marriage, a false statement as to any particular
required by law to be known and registered relating to any
marriage.
(_c_) forbids the issue of any certificate, or license for marriage
by falsely representing himself to be a person whose
consent to the marriage is required by law, knowing such
representation to be false,
he shall be guilty of a misdemeanour and on conviction thereof
on indictment shall be liable to penal servitude for a term not
exceeding seven years or to imprisonment, with or without hard
labour, for a term not exceeding two years, or to a fine or to both
such penal servitude or imprisonment and fine.
(2) No prosecution for knowingly and wilfully making a false
declaration for the purpose of procuring any marriage out of the
district in which the parties or one of them dwell shall take place
after the expiration of months from the solemnization of the
marriage to which the declaration refers.
=4.= (1) If any person--
(_a_) wilfully makes any false answer to any question put to him by
any registrar of births or deaths relating to the particulars
required to be registered concerning any birth or death, or
wilfully gives to any such registrar any false information
concerning any birth or death or the cause of death, or
(_b_) wilfully makes any false certificate or declaration under
or for the purposes of any Act relating to the registration
of births or deaths, or knowing any such certificate or
declaration to be false, uses the same as true or gives or
sends the same as true to any person, or
(_c_) wilfully makes, gives or uses any false statement or
declaration as to a child born alive as having been
still-born, or as to the body of a deceased person or a
still-born child in any coffin, or falsely pretends that any
child born alive was still-born, or
(_d_) makes any false statement with intent to have the same
inserted in any register of births or deaths:
shall be guilty of a misdemeanour and shall be liable--
(i) on conviction thereof on indictment to penal servitude for a
term not exceeding seven years, or to imprisonment with or
without hard labour for a term not exceeding two years, or to
a fine instead of either of the said punishments; and
(ii) on summary conviction thereof to a penalty not exceeding ten
pounds:
(2) A prosecution on indictment for an offence against this section
shall not be commenced more than three years after the commission of
the offence.
=5.= If any person knowingly and wilfully makes (otherwise than on
oath) a statement false in a material particular, and the statement
is made--
(_a_) in a statutory declaration, or
(_b_) in an abstract account, balance sheet, book, certificate,
declaration, entry, estimate, inventory, notice, report,
return, or other document which is authorised or required to
make, attest, or verify, by (under or for the purposes of)
any public general Act of Parliament for the time being in
force, or
(_c_) in any oral declaration or oral answer which he is required
to make by (under or in pursuance of) any public general Act
of Parliament for the time being in force,
he shall be guilty of a misdemeanour and shall be liable on
conviction thereof on indictment to imprisonment with or without hard
labour, for any term not exceeding two years, or to a fine or to both
such imprisonment and fine.
=6.= If any person--
(_a_) procures or attempts to procure himself to be registered on
any register or roll kept under or in pursuance of any public
general Act of Parliament for the time being in force of
persons qualified by law to practise any vocation or calling,
or
(_b_) procures or attempts to procure a certificate of the
registration of any person on any such register or roll as
aforesaid,
by wilfully making or producing or causing to be made or produced
either verbally or in writing, any declaration, certificate, or
representation which he knows to be false or fraudulent, he shall be
guilty of a misdemeanour and shall be liable on conviction thereof on
indictment to imprisonment for any term not exceeding twelve months,
or to a fine, or to both such imprisonment and fine.
=7.= (1) Every person who aids, abets, counsels, procures, or suborns
another person to commit an offence against this Act shall be liable
to be proceeded against, indicted, tried and punished as if he were a
principal offender.
(2) Every person who incites or attempts to procure or suborn
another person to commit an offence against this Act shall be guilty
of a misdemeanour, and on conviction thereof on indictment shall be
liable to imprisonment, or to a fine, or to both such imprisonment
and fine.
=8.= Where an offence against this Act or any offence punishable as
perjury under any other Act of Parliament is committed in any place
either on sea or land outside the United Kingdom the offender may
be proceeded against, indicted, tried, and punished in any county
or place in England where he was apprehended or is in custody as if
the offence had been committed in that county or place; and for all
purposes incidental to or consequential on the trial or punishment of
the offence, it shall be deemed to have been committed in that county
or place.
=9.= (1) Where any of the following authorities, namely, a judge
of or person presiding in a court of record, or a petty sessional
court, or any justice of the peace sitting in special sessions, or
any sheriff or his lawful deputy before whom a writ of inquiry or
a writ of trial is executed is of opinion that any person has in
the course of a proceeding before that authority been guilty of
perjury, the authority may order the prosecution of that person
for such perjury in case there shall appear to be reasonable cause
for such prosecution and may commit him, or admit him to bail, to
take his trial at the proper court, and may require any person to
enter into a recognizance to prosecute or give evidence against the
person whose prosecution is so ordered, and may give the person so
bound to prosecute a certificate of the making of the order for the
prosecution, for which certificate no charge shall be made.
(2) An order made or a certificate given under this section shall be
given in evidence for the purpose or in the course of any trial or a
prosecution resulting therefrom.
=10.= A court of quarter sessions shall not have jurisdiction to try
an indictment for any offence against this Act, or for an offence
which under any enactment for the time being in force is declared
to be perjury or to be punishable as perjury, or as subornation of
perjury.
=11.= The provisions of the Vexatious Indictments Act, 1859, and the
Acts amending the same, shall apply in the case of any offence
punishable under this Act, and in the case of any offence which
under any other enactment for the time being in force, is declared
to be perjury or subornation of perjury or is made punishable as
perjury or as subordination of perjury, in like manner as if all the
said offences were enumerated in section one of the said Vexatious
Indictments Act, 1859: Provided that in that section a reference
to this Act shall be substituted for the reference therein to the
Criminal Procedure Act, 1851.
=12.= (1) In an indictment--
(_a_) for making any false statement or false representation
punishable under this Act, or
(_b_) for unlawfully, wilfully, falsely, fraudulently, deceitfully,
maliciously, or corruptly taking, making, signing, or
subscribing any oath, affirmation, solemn declaration,
statutory declaration, affidavit, deposition, notice,
certificate, or other writing,
it is sufficient to set forth the substance of the offence charged,
and before which court or person (if any) the offence was committed
without setting forth the proceedings or any part of the proceedings
in the course of which the offence was committed, and without setting
forth the authority of any court or person before whom the offence
was committed.
(2) In an indictment for aiding, abetting, counselling, suborning,
or procuring any other person to commit any offence hereinbefore in
this section mentioned, or for conspiring with any other person, or
with attempting to suborn or procure any other person, to commit any
such offence, it is sufficient--
(_a_) where such an offence has been committed, to allege that
offence, and then to allege that the defendant procured the
commission of that offence, and
(_b_) where such offence has not been committed, to set forth
the substance of the offence charged against the defendant
without setting forth any matter or thing which it is
unnecessary to aver in the case of an indictment for a false
statement or false representation punishable under this Act.
=13.= A person shall not be liable to be convicted of any offence
against this Act, or of any offence declared by any other Act to be
perjury or subornation of perjury or to be punishable as perjury or
subornation of perjury solely upon the evidence of one witness as to
the falsity of any statement alleged to be false.
=14.= On a prosecution
(_a_) for perjury alleged to have been committed on the trial of an
indictment for felony or misdemeanour, or
(_b_) for procuring or suborning the commission of perjury on any
such trial,
the fact of the former trial shall be sufficiently proved by the
production of a certificate containing the substance and effect
(omitting the formal parts) of the indictment and trial purporting
to be signed by the clerk of the court, or other person having the
custody of the records of the court where the indictment was tried,
or by the deputy of the clerk or other person, without proof of the
signature or official character of the clerk or person appearing to
have signed the certificate.
=15.= (1) For the purposes of this Act the forms and ceremonies used
in administering an oath are immaterial, if the court or person
before whom the oath is taken has power to administer an oath for
the purpose of verifying the statement in question, and if the oath
has been administered in a form and with ceremonies which the person
taking the oath has accepted without objection, or has declared to be
binding on him.
(2) In this Act--
The expression “oath” in the case of persons for the time being
allowed by law to affirm or declare instead of swearing, includes
“affirmation” and “declaration,” and the expression “swear” in the
like case includes “affirm” and “declare”; and
The expression “statutory declaration” means a declaration made
by virtue of the Statutory Declarations Act, 1835, or of any Act,
Order in Council, rule or regulation applying or extending the
provisions thereof; and
The expression “indictment” includes “criminal information.”
=16.= (1) Where the making of a false statement is not only an
offence under this Act, but also by virtue of some other Act is
a corrupt practice or subjects the offender to any forfeiture or
disqualification or to any penalty other than penal servitude, or
imprisonment, or fine, the liability of the offender under this Act
shall be in addition to and not in substitution for his liability
under such other Act.
(2) Nothing in this Act shall apply to a statement made without oath
by a child under the provisions of the Prevention of Cruelty to
Children Act, 1904, and the Children Act, 1908.
(3) Where the making of a false statement is by any other Act,
whether passed before or after the commencement of this Act, made
punishable on summary conviction proceedings may be taken either
under such other Act or under this Act:
Provided that where such an offence is by any Act passed before the
commencement of this Act, as originally enacted, made punishable only
on summary conviction, it shall remain only so punishable.
=17.= The enactments specified in the schedule of this Act are hereby
repealed, so far as they apply to England, to the extent specified in
the third column of that schedule.
=18.= This Act shall not extend to Scotland or Ireland.
=19.= This Act may be cited as the Perjury Act, 1911, and shall come
into operation on the first day of January, nineteen hundred and
twelve.
The schedule attached to the new Bill--which comes to an end, so far as
the provisions are concerned, with clause 19--repeals one hundred and
thirty-two legislative measures, the first one to go, being 52 Hen. 8.
c. 9.--“Agenst maintenance and embracery byeng of titles, etc.”
The Perjury Bill promises to crush out many anomalous conditions, not
the least of which are those connected with the facility afforded at
present to the supply of false data to registrars of births and deaths,
more particularly in respect to births. Under existing conditions, by a
passive method of _suppressio veri_, as opposed to _expressio falsi_,
the most grossly inaccurate entries may be recorded in the registers.
For a person who voluntarily sets himself to speak what is false, there
is no limit to the length to which he may go, without let or hindrance.
By the force of the new Bill, this state of affairs will come to an
abrupt and timely end. It is high time, too, for the records of England
are filled with the most unwarrantable entries.
Where two persons are cohabiting together as man and wife, and a
child is born, the chances are the father, if he goes to record the
birth, will merely be asked the maiden name of his wife. If he is a
good-natured man, he may answer in all truth that her name was Joan
Stuart, or whatever the name may be. He is not asked whether he _is_
actually married in law, or when and where he _was_ married, nor what
evidence he has to show that any marriage ever took place. Admittedly,
the lack of insistence on the part of the authorities is benign in one
way, but it leaves loop-holes for all sorts of abuses. The Perjury Bill
threatens to stop them up.
In sub-section (2), clause 5, of the Perjury Bill, there is the
line, “after the expiration _of months_ from the solemnization of the
marriage.” What “the expiration of months” means, Heaven only knows!
Either by accident or intention an anomaly will be created unless
His Majesty’s Stationery Office, or the Printers to the King’s Most
Excellent Majesty, will assume responsibility and correct the error.
As the Bill stands, “the expiration of months” may mean any number of
months, which is grotesque on the face of it.
III. THE CRIMINAL EVIDENCE ACT
The Criminal Evidence Act, 1898, comes out of chronological order
here, but it is none the worse for that. It might have been placed
first of all, instead of granting precedence to the Poor Prisoners’
Defence Act, 1903, though in the present arrangement of several short
Acts of Parliament, various considerations have exercised the author.
Then, too, for instance, the Perjury Bill, 1911, quite the newest
thing in legislation, supplies a form of introduction to the Criminal
Evidence Act, which has given great and uninterrupted scope to half
a generation of liars. It is the constant complaint of judges that
a criminal when giving evidence on his own behalf rarely tells the
truth, or anything approaching the truth. Comment on the subject flows
freely from the Bench, with every possible cause. If criminals were
not allowed to “speak for themselves,” at least the occupants of the
dock could tell no lies. Still, there are so many technical fictions
permitted nowadays that one half expects a man to lie with _sang
froid_, in an attempt to save his own skin. This is scarcely morality,
but it is a practical and true way to look upon an evil which is akin
to nature. On one of those rare occasions, when a murderer is caught
red-handed, he will enter a plea of “Not Guilty,” as a matter of
course. The plea is a fiction in itself, but an even greater one is to
be found in the amendment or alteration of a plea of “Guilty” to “Not
Guilty,” the most absurd anomaly sanctioned in the English courts, one
due, it may be explained, to the tolerance of the judiciary.
Owing to the shortness of the Criminal Evidence Act, and owing also
to its clearness of meaning, it may here be inserted intact, without
misgiving. It is made up of only seven brief sections, the first of
which begins,
=1.= Every person charged with an offence, and the wife or husband,
as the case may be, of the person so charged, shall be a competent
witness for the defence at every stage of the proceedings, whether
the person so charged is charged solely or jointly with any other
person. Provided as follows:--
(_a_) a person so charged shall not be called as a witness in
pursuance of this Act except upon his own application.
(_b_) The failure of any person charged with an offence, or of
the wife or husband, as the case may be, of the person so
charged, to give evidence shall not be made the subject of
any comment by the prosecution.
(_c_) The wife or husband of the person charged shall not, save as
in this Act mentioned, be called as a witness in pursuance of
this Act except upon the application of the person so charged.
(_d_) Nothing in this Act shall make a husband compellable to
disclose any communication made to him by his wife during the
marriage, or a wife compellable to disclose any communication
made to her by her husband during the marriage.
(_e_) A person charged and being a witness in pursuance of
this Act may be asked any question in cross-examination
notwithstanding that it would tend to criminate him as to the
offence charged.
(_f_) A person charged and called as a witness in pursuance of
this Act shall not be asked, and if asked shall not be
required to answer, any question tending to show that he
has committed or been convicted of or been charged with any
offence other than that wherewith he is then charged, or is a
bad character, unless--
(i) the proof that he has committed or been convicted of
such other offence is admissible evidence to show
that he is guilty of the offence wherewith he is then
charged, or
(ii) he has personally or by his advocate asked questions
of the witnesses for the prosecution with a view to
establish his own good character, or has given evidence
of his good character, or the nature or conduct of
the defence is such as to involve imputations on the
character of the prosecutor or the witnesses for the
prosecution, or
(iii) he has given evidence against any other person charged
with the same offence.
(_g_) Every person called as a witness in pursuance of this Act
shall, unless otherwise ordered by the court, give his
evidence from the witness box or other place from which the
other witnesses give their evidence.
(_h_) Nothing in this Act shall affect the provisions of section
eighteen of the Indictable Offences Act, 1848, or any right
of the person charged to make a statement without being sworn.
=2.= Where the only witness to the facts of the case called by the
defence is the person charged, he shall be called as a witness
immediately after the close of the evidence for the prosecution.
=3.= In cases where the right of reply depends upon the question
whether evidence has been called for the defence, the fact that the
person charged has been called as a witness shall not of itself
confer on the prosecution the right of reply.
=4.= (1) The wife or husband of a person charged with an offence
under any enactment mentioned in the schedule to this Act may be
called as a witness either for the prosecution or defence and without
the consent of the person charged.
(2) Nothing in this Act shall affect a case where the wife or husband
of a person charged with an offence may at common law be called as a
witness without the consent of that person.
=5.= In Scotland, in a case where a list of witnesses is required,
the husband or wife of a person charged shall not be called as
a witness for the defence, unless notice be given in the terms
prescribed by section thirty-six of the Criminal Procedure (Scotland)
Act, 1887.
=6.= (1) This Act shall apply to all criminal proceedings,
notwithstanding any enactment in force at the commencement of this
Act, except that nothing in this Act shall affect the Evidence Act,
1877.
(2) But this Act shall not apply to proceedings in courts martial
unless so applied--
(_a_) as to courts martial under the Naval Discipline Act, by
general orders made in pursuance of section sixty-five of
that Act, and
(_b_) as to courts martial under the Army Act by rules made in
pursuance of section seventy of that Act.
=7.= (1) This Act shall not extend to Ireland.
(2) This Act shall come into operation on the expiration of two
months from the passing thereof.
(3) This Act may be cited as the Criminal Evidence Act, 1898.
It seems a farce to put a criminal in the position of a witness, and
unless he has his wits about him he may have good cause to regret
taking advantage of the Act. The evidence of an accused person must, of
necessity, be discounted in the mind of the judge, and very properly,
too, when it is almost invariably false, or, at best, materially
tainted with falsehood. The instinct of self-preservation is strong
in every man, however lowly his sphere; accuse a public servant of
drunkenness while on duty, and he will, with the aid of his associates,
manufacture evidence of his invariable sobriety! It is the same thing
with persons accused of crime. Accuse them, and they will fight to
escape. That they are guilty is a detail. The Criminal Evidence Act
merely gives them an additional crutch on which to lean, _i.e._, the
license of personal explanation. That the Act is based on benevolence
and a desire to do justice, and for such reasons is worthy of respect,
one cannot doubt, but candour compels one to submit, also, that it
affords a fertile opportunity for perjury on the part of a criminal,
and for an unnecessary waste of time.
Since the trial, at the Central Criminal Court, of the murderer,
“Stinie” Morrison, or Morris Stein, the Criminal Evidence Act has
attracted a good deal of special comment. The bulk of this comment
has been directed against that portion of subsection (_b_), section
1, which, where “the nature or conduct of the defence is such as to
involve imputations on the character of the prosecutor or the witnesses
for the prosecution,” authorises the prosecution to question the
accused as to his past crimes, convictions, etc.
“Defending counsel may again, as in Rex v. Morrison,” says a legal
writer in _The Daily Mail_, “feel it his duty to attack the characters
of some of the witnesses for the Crown. At once the prisoner is
rendered liable to have his whole dossier--generally a damaging
one--laid before the jury. That is an immense step forward to the
Continental system, where the judge’s interrogatories always begin with
a catechism on the prisoner’s previous crimes.”
The same matter has brought some remarks from the law correspondent of
_The Pall Mall Gazette_, “If there is to be legislation on the subject,
one suggestion may be hazarded. It is that, whatever other amendments
in the Criminal Evidence Act experience may demand, an exception from
the stringent rule should be made in capital cases. When the penalty
is death, admit nothing but ‘the facts’ and exclude bad character from
them.”
Even _The Law Times_ takes up much the same attitude as the lay
journals. “It has always been our boast,” it states, “so far as the
administration of our criminal law is concerned, that a prisoner must
be deemed to be innocent until he is proved guilty and that the onus is
upon the prosecution to prove his guilt. The effect of the Act of 1898
has been imperceptibly and gradually to change that position, and to a
large extent nowadays the onus of proving his innocence in many cases
in fact falls upon the accused.”
Transcriber’s Notes
• Italic text represented with surrounding _underscores_.
• Bold text represented with surrounding =equal signs=.
• Small Caps converted to ALL CAPS.
• Obvious typographic errors silently corrected.
• Variations in hyphenation and spelling left as in the original.
• Footnotes renumbered consecutively and moved to the end of their
respective chapters. There are two intentionally duplicated footnote
references that use the same footnote source.
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