ANOMALIES OF THE
ENGLISH LAW

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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.

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“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 [11] 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.

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“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 [13] 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.

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“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 [15] 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 [16] 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, [17] 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.”

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 [20] 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 [21] 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 [22] 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 [23] 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 [24] 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 [25] 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 [26] 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 [27] 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 [28]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 [29] 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 [30] 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 [31] 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 [32] 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. [33] 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 [34] 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.

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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, [36] 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 [37] 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]

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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 [39] 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, [40] 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 [41] 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.

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(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 [43] 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.

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 [45] 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 [46] 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.

[47]

“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 [48] 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 [49] 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 [50] 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 [51] 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 [52] 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 [53] 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 [54] 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 [55] 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 [56] 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 [57] 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 [58] 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 [59] 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 [60] 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 [61] 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 [62] 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 [63] 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, [64] 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 [65] through habit, through a certain repulsion which many people have for giving practical thought to death and its circumstances.⁠[10]

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 [68] 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 [69] 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 [70] 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 [71] 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 [72] 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 [73] 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 [74] 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 [75] 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 [76] 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 [77] 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 [78] 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 [79] 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. [80] 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.

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.

[82]

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.”

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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 [84] 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 [85] 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, [86] 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 [87] 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.”

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“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 [89] 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 [90] 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 [91] 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. [92] 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 [93] 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 [94] 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]

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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 [96] 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.

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 [98] 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 [99] 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 [100] 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 [101] 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 [102] 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 [103] 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 [104] 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 [105] 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 [106] 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 [107] 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, [108] 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.”

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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.”

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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, [111] 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 [112] 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 [113] 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 [114] 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 [115] 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.

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 [117] 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” [118] 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 [119] 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 [120] 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. [121] 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 [122] 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 [123] 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 [124] 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 [125] 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]

[126]

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 [127] 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 [128] 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 [129] 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 [130] 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.

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 [132] 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, [133] 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 [134] 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 [135] 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 [136] 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 [137] 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 [138] 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.

[139]

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 [140] 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 [141] 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 [142] 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 [143] 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, [144] 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.

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 [146] 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 [147] 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. [148] 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!).

[149]

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, [150] 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 [151] 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. [152] 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 [153] 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 [154] 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 [155] 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 [156] 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 [157] 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, [158] 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. [159] 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 [160] 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 [161] 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 [162] 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. [163] 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 [164] 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.

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 [166] 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 [167] 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 [168] 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 [169] 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, [170] 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 [171] 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 [172] 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 [173] 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 [174] 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 [175] 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.

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.

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 [177] 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, [178] 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 [179] 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 [180] 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 [181] 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. [182] 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, [183] 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 [184](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.

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.

[186]

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 [187] 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, [188] 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 [189] 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 [190] 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 [191] 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 [192] 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 [193] 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 [194] 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 [195] 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 [196] 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; [197] 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, 1s. 6d.; for boat hire in and out and a breakfast for two days, 1s. 6d.’ 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 3s. 8d., with 4d. for his dinner.... When Sir Thomas Moore lived in Bucklersbury, he ‘gained, without grief, not so little as 400l. by the year. Considering [198] the relative profits of the Bar, and the value of money,’ says Lord Campbell, ‘this income probably indicated as high a station as 10,000l. 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 6,000l. a year, of which the King paid him only 81l. 6s. 8d..’ 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 7,000l. 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 [199] 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; 2,000l. 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 1,000l. 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 [200] 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 700l. 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 3,371l.; in 1674, 3,560l.; and in 1675—the first year of his tenure of the Solicitor-General’s office—4,066l., of which only 429l. were office fees. Lord Keeper North made 7,000l. 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 [201] 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 7,322l. Lord Eldon’s fee-book shows a great advance. In 1794, he received 11,592l.; in 1795, 11,149l.; in 1796, 12,140l. 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 3,600l. 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 8,000l. or 9,000l., besides paying his debts, obtaining a silk gown, and a business of at least 3,000l. a year.’”⁠[35]

In bringing this chapter to a close, it seems only fitting again to lay stress on the [202] 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.]

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 [204] 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 [205] 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 [206] 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 [207] 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 [208] 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 [209] 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 [210] 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 [211] 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 [212] 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 [213] 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 50l. and imprisonment for six months, or upon conviction on indictment with a fine of 200l. 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 50l. and imprisonment for six months, or upon conviction on indictment with a fine of 100l. and imprisonment for twelve months. Further powers are given to the Postmaster-General.

[214]

“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 10l., or with imprisonment for two months without the option of a fine, or upon a second or subsequent conviction with a fine of 30l., 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 [215] 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 [216] 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 [217] 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 [218] 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 [219] 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 [220] 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 [221] 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 [222]“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.

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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 [224] 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 [225] 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, [226] 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 [227] 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?”

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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]

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. [230] 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?

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“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 [232] 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 [233] 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.

The functions of a coroner are not, of course, peculiarly confined to death inquisitions. They extend to inquiries in connection with treasure [234] 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 [235] 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, [236] 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.”

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.

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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 [239] 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.

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 [240] 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.

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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.

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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.)

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.

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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.

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 [245] 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 [246] 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—

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(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 [248] 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 [249] 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 [250] 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 [251] 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) [252] 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 [253] 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 [254] 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, [255] 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 [256] 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 [257] 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.

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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 [259] 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 [260] 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

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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.)

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 [263] 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.

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.

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 [264] 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.”

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, [266] 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.

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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, [268] 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:—

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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

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(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 [271] 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 [272] 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 [273] 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.

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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 [275] 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, [276] 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.

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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 [278] 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 [279]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 [280]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 [281] 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 [282] 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, [283] 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 [284] 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.

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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 [286] 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 [287] 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.”