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+*** START OF THE PROJECT GUTENBERG EBOOK 77236 ***
+
+
+
+
+ANOMALIES OF THE ENGLISH LAW
+
+
+
+
+ANOMALIES OF THE ENGLISH LAW
+
+BY
+
+SAMUEL BEACH CHESTER
+
+ Of the Middle Temple, Esquire, Barrister-at-Law;
+ Fellow of the Royal Geographical Society;
+ Companion of the Military Order of the Loyal
+ Legion of the United States, Commandery of
+ Pennsylvania; Member of the (U.S.) Military
+ Service Institution, Governor’s Island, New York
+ Harbour.
+
+ BOSTON
+ LITTLE, BROWN, AND COMPANY
+ 1912
+
+
+
+
+PRINTED IN GREAT BRITAIN
+
+
+
+
+CONTENTS
+
+
+                                                     PAGE
+
+ INTRODUCTION.
+ A SATIRE ON BARRISTERS, BY CHARLES LEVER               9
+
+ CHAPTER I
+ DIVORCE                                               19
+
+ CHAPTER II
+ DEATH AND BURIAL                                      44
+
+ CHAPTER III
+ WILLS                                                 67
+
+ CHAPTER IV
+ LIBEL AND SLANDER                                     81
+
+ CHAPTER V
+ IMPRISONMENT FOR DEBT                                 97
+
+ CHAPTER VI
+ THE NEED FOR THE RIGHT OF PROPERTY IN SURNAMES       116
+
+ CHAPTER VII
+ LITERARY CENSORSHIP                                  131
+
+ CHAPTER VIII
+ CAPITAL PUNISHMENT, MURDER AND SUICIDE               145
+
+ CHAPTER IX
+ LEGITIMATION                                         165
+
+ CHAPTER X
+ CRIMINAL APPEAL AND THE BALL CASE                    176
+
+ CHAPTER XI
+ CLIENT, SOLICITOR, AND COUNSEL                       185
+
+ CHAPTER XII
+ THE MORALITY BILL, ACCESSION, AND CORONATION
+ OATHS AND DECLARATIONS                               203
+
+
+APPENDICES.
+
+ APPENDIX A
+ DIVORCE                                              229
+
+ APPENDIX B
+ CORONERS                                             233
+
+ APPENDIX C
+ THE ROYAL MARRIAGES ACT, 1772                        237
+
+ APPENDIX D
+ EXECUTIONS                                           239
+
+ APPENDIX E
+ AN ENGLISH LEGITIMATION BILL                         243
+
+ APPENDIX F
+ THE CRIMINAL APPEAL ACT, 1907                        244
+
+ APPENDIX G
+ THE CORONATION OATH OF KING GEORGE V                 262
+
+ APPENDIX H
+ THE POOR PRISONERS’ DEFENCE ACT, THE PERJURY
+ BILL, AND THE CRIMINAL EVIDENCE ACT                  265
+
+
+
+
+        I DEDICATE THIS WRITING TO MY FRIEND,
+              William H. Cozens-Hardy,
+                  OF LINCOLN’S INN.
+
+                                     S. B. C.
+
+
+
+
+ANOMALIES OF THE ENGLISH LAW
+
+
+
+
+INTRODUCTION[1]
+
+
+“Authors have long got the credit of being the most accomplished
+persons going--thoroughly conversant not only with the features of
+every walk of life, but, also, with their intimate sentiments, habits
+of thought, and modes of expression. Now, I have long been of opinion
+that, in all these respects, lawyers are infinitely their superiors.
+The author chooses his characters as you choose your dish, or your
+wine at dinner--he takes what suits, and leaves what is not available
+to his purpose. He then fashions them to his hand--finishing off this
+portrait, sketching that one--now bringing certain figures into strong
+light, anon throwing them into shadow: they are his creatures, who must
+obey him while living, and even die at his command.
+
+“Now, the lawyer is called upon for all the narrative and descriptive
+powers of his art, at a moment’s notice, without time for reading or
+preparation; and worse than all, his business frequently lies among
+the very arts and callings his taste is most repugnant to. One day
+he is to be found creeping, with tortoise slowness, through all the
+wearisome intricacy of an equity case--the next, he is borne along in a
+torrent of indignant eloquence, in defence of some Orange processionist
+or some Ribbon associate; now he describes, with the gravity of a
+landscape gardener, the tortuous windings of a mill-stream: then, he
+expatiates in Lytton Bulwerisms over the desolate hearth and broken
+fortunes of some deserted husband. In one court he attempts to prove
+that the elderly gentleman, whose life was insured for a thousand at
+the Phœnix, was instrumental to his own decease, for not eating cayenne
+with his oysters; in another, he shows, with palpable clearness, that
+being stabbed in the body, and having the head fractured, is a venial
+offence--merely the result of ‘political excitement’ in a high-spirited
+and warm-hearted people.... These are all clever efforts, which demand
+consummate powers of him who makes them; but what are they to that
+profound and critical research with which he seems, instinctively, to
+sound the depths of every scientific walk in life, and every learned
+profession.
+
+“Hear him in a lunacy case--listen to the deep and subtle
+distinctions he draws between symptoms of mere eccentricity and erring
+intellect--remark how insignificant the physician appears in the
+case, who has made these things the study of a life long--hear how
+the barrister confounds him with a hail-storm of technicals--talking
+of the pineal gland as if it were an officer of the court, and of
+atrophy of the cerebral lobes, as if he were speaking of an attorney’s
+clerk. Listen to him in a trial of supposed death by poison; what a
+triumph he has there, particularly if he be a junior barrister--how he
+walks undismayed among all the tests for arsenic; how little he cares
+for Marsh’s apparatus and Scheele’s discoveries--hydro-sulphates,
+peroxydes, iodurates, and proto-chlorides are as familiar to him as
+household words. You would swear that he was nursed at a glass retort,
+and sipped his first milk through a blow-pipe.
+
+“Like a child who thumps the keys of a pianoforte, and imagines
+himself a Liszt or Moschelles, so does your barrister revel amid
+the phraseology of a difficult science, pelting the witnesses with
+his blunders, and assuring the jury that their astonishment means
+ignorance. Nothing in anatomy is too deep--nothing in chemistry too
+subtle; no fact in botany too obscure--no point in metaphysics too
+difficult. Like Dogberry, these things are to him but the gift of God,
+and he knows them at his birth. Truly, the Chancellor is a powerful
+magician; and the mystic words by which he calls a gentleman to the Bar
+must have some potent spell within them.
+
+“The youth you remember as if it were yesterday, the lounger at
+evening parties, or the chaperon of riding damsels to the Phœnix, comes
+forth now a man of deep and consummate acquirement--he, whose chemistry
+went no further than the composition of a ‘tumbler of punch,’ can now
+perform the most difficult experiments of Orfila or Davy, or explain
+the causes of failure in a test that has puzzled the scientific world
+for half a century. He knows the precise monetary value of a deserted
+maiden’s affections--he can tell you the exact sum, in bank notes,
+that a widow will be knocked down for, when her heart has been subject
+to but a feint attack by Cupid. With what consummate skill, too, he
+can show that an indictment is invalid, when stabbing is inserted
+for cutting; and when the Crown prosecutor has been deficient in his
+descriptive anatomy, what a glorious field for display is opened to him.
+
+“Then, to be sure, what droll fellows they are!--how they do quiz the
+witness as he sits trembling on the table; what funny allusions to his
+habits of life, his age, his station; turning the whole battery of
+their powers of ridicule against him--ready, if he ventured to retort,
+to throw themselves on the protection of the court! And truly, if a
+little Latin suffice for a priest, a little wit goes very far in a
+law court. A joke is a universal blessing; the judge, who, after all,
+is only ‘an old lawyer,’ loves it from habit: the jury, generally
+speaking, are seldom in such good company, and they laugh from
+complaisance; and the Bar joins in the mirth, on that great reciprocity
+principle, which enables them to bear each other’s dulness, and dine
+together afterwards.
+
+“What set me first on this train of thought was a trial I lately read,
+where a cross action was sustained for damage at sea--the owners of the
+brig _Durham_ against the _Aurora_, a foreign vessel, and _vice versâ_,
+for the result of a collision at noon, on the 14th of October. It
+appeared that both vessels had taken shelter in the Humber from stress
+of weather, nearly at the same time--that the _Durham_, which preceded
+the Prussian vessel, ‘clewed up her topsails, and dropped her anchor
+_rather_ suddenly: and the _Aurora_ being in the rear, the vessels came
+into collision.’ The question, therefore, was, whether the _Durham_
+came to anchor too precipitately, and in an unseamanlike manner; or, in
+other words, whether, when the ‘_Durham_ clewed up topsails and let go
+her anchor, the _Aurora_ should not have luffed up, or got sternway on
+her,’ etc.
+
+“Nothing could possibly be more instructive, nor anything scarcely
+more amusing, than the lucid arguments employed by the counsel on both
+sides. The learned Thebans, who would have been sick in a ferry-boat,
+spoke as if they had circumnavigated the globe. Stay-sails, braces,
+top-gallants, clews, and capstans they hurled at each other, like
+_bon bons_ at a carnival; and this naval engagement lasted from
+daylight to dark. Once only, when the judge ‘made it noon,’ for a
+little reflection, did they cease conflict, to renew the strife
+afterwards with more deadly daring, until, at last, so confused were
+the witnesses--the plaintiff, defendant, and all, that they half wished
+they had gone to the bottom, before settling their differences in the
+Admiralty Court.
+
+“This was no common occasion for the display of these powers so
+peculiarly the instinctive gift of the Bar, and certainly they used it
+with all the enthusiasm of a _bonne bouche_.... How I trembled for the
+_Aurora_, when an elderly gentleman, with a wart on his nose, assured
+the court that the _Durham_ had her topsail backed ten minutes before
+the anchor fell; and then, how I feared again for the _Durham_, as a
+thin man in spectacles worked the Prussian about in a double-reefed
+main-sail, and stood round in stays so very beautifully. I thought
+myself at sea, so graphic was the whole description--the waves splashed
+and foamed around the bulwarks, and broke in spray upon the deck; the
+wind rattled amid the rigging, the bulkheads creaked, and the good ship
+heaved heavily in the trough of the sea, like a mighty monster in its
+agony. But my heart quailed not--I knew that Dr. Lushington was at the
+helm, and Dr. Haggard had the look-out ahead--I felt that Dr. Robinson
+stood by the lee braces, and Dr. Addison waited, hatchet in hand, to
+cut away the mainmast! These were comforting reflections, until I was
+once more enabled to believe myself in Her Majesty’s High Court of
+Admiralty.
+
+“Alas! ye Coopers, ye Marryats, ye Chamiers--ye historians of
+storm and sea-fight, how inferior are your triumphs compared with
+the descriptive eloquence of a law court. Who can portray the broken
+heart of blighted affection like Charles Phillips in a breach of
+promise case? What was Scott compared to Scarlett?--how inferior is
+Dickens to Counsellor O’Driscoll?--here are the men, who, without the
+trickery of trade, ungilt, unlettered, and unillustrated, can move the
+world to laughter and tears. They ask no aid from Colburn, nor from
+Cruikshank--they need not ‘Brown’ nor Longman, Heaven-born warriors,
+doctors, chemists, and anatomists; deep in every art, learned in every
+science--mankind is to them an open book, which they read at will, and
+con over at leisure--happy country, where your talents are so available
+that they can be had for the asking.”
+
+
+FOOTNOTE
+
+[1] A satire on barristers, by Charles Lever.
+
+
+
+
+CHAPTER I
+
+DIVORCE[2]
+
+
+The administration of justice in this country is to some extent
+idealised by the world at large. Certainly, there is honesty of purpose
+in the word and act of every English judge. But where the law is wrong
+the most painstaking and conscientious judge can hardly be right.
+Then, again, for example, where a judge is compelled to combine three
+distinct and separate jurisdictions in one, as in Probate, Divorce, and
+Admiralty, the machinery of justice must sometimes tend to clog. It is
+also utterly incongruous for the same judge to be expected to perfect
+himself in three subjects so widely different in character. What, for
+instance, could be further removed from the troubles of a man and his
+wife than the navigation of ships on the high sea? Probably a liability
+to collision is the only point in common! Probate is less remote in one
+sense and equally so in another. It is almost grossly anomalous to run
+these three branches of law and legal training in the same division,
+presided over by the same judges. Probate should be shifted to the
+Chancery Division, Admiralty to the King’s Bench, and Divorce might be
+allowed a little court of its own.
+
+Before 1858 matrimonial causes were in the jurisdiction of the
+Ecclesiastical Courts, which by the grace of God and the law of the
+land are now almost limited to the punishment of ecclesiastical black
+sheep--a sufficient occupation, perhaps, in itself! Actual divorce, by
+the way, was only possible in those days by means of a Private Act of
+Parliament. (This method still applies in Ireland.)
+
+But to come to the law as it now stands, it seems to contain at
+least two great imperfections, namely, the judicial separation and the
+dreadful tie between an erring husband and an erring wife. In cases
+of the latter description, the practice is to prevent the parties to
+the predicament from mending their ways or improving their hope of
+happiness, whatever form that hope may take. It also frequently leads
+to the misfortunes of a third person, who might otherwise escape on
+a conscionable arrangement. _A_ is the husband of _B_. _A_ commits
+adultery and his wife does likewise. They then discover their common
+shortcomings, with the consequence that they forthwith become violently
+opposed to one another and separate. What is the net result? They
+are tied together for life; _B_ soon becomes desperate; presently,
+she encourages many lovers and her last vestige of self-respect
+disappears. Henceforth, she is a _déclassée_. _A_, on the other hand,
+ultimately settles his affection on one woman, otherwise blameless
+in character. He cannot marry her and she drifts into concubinage.
+Had some means existed to bring the unfortunate marriage of _A_ and
+_B_ to an end at the time of their original delinquencies, all of
+these later developments might have been, almost certainly would have
+been, avoided. The usual inability, therefore, for an erring husband
+and an erring wife to legally dissolve their union, sows the seed of
+increasing injustice, which may, and probably does, extend to the
+punishment of persons who were not parties to the primary condition
+of adultery. A divorce should be obtainable, as of course, on the
+application of either party to a marriage, after one year’s domiciliary
+separation, whether such separation is due to mutual transgression, or
+merely to the lesser evils of married life. Under such a condition of
+affairs, the community would be bound to benefit.
+
+The judicial separation of to-day is one of the most unsatisfactory
+phases of matrimonial law and practice. Let us, for example, assume
+that _C_ is the husband of _D_. _C_ is a drunkard, a man of loose
+morals and disagreeable temperament. _D_ is the reverse in every
+possible respect, a woman of culture, youth and beauty. Her moral sense
+is exemplary and her conduct is always quite beyond reproach. After a
+most unpleasant legal experience, she obtains a judicial separation.
+Her position becomes isolated; she has a living husband, whose name she
+bears, she has attractions, but she can hold out no hope to a suitor,
+for she is still legally tied to the man from whom she is legally
+separated. Could a greater anomaly exist? It is unfair in the extreme.
+The most she can do, within the narrow limit of her outlook, is to
+resign herself to a physically unfair position, and await her husband’s
+death, which may not occur until her youth and beauty have vanished and
+she, too, confronts the grave. This is the practical outcome of many
+judicial separations, which ought in all justice to be done away with.
+Abolition, with an easier method of securing a divorce proper, is the
+need of the moment.
+
+With all due respect to the King’s Proctor, a somewhat thankless
+office, the interval--one may call it the probationary interval--which
+must elapse between the granting of a decree _nisi_ (or preliminary
+decree) and the granting of the decree absolute (or final decree)
+should be removed. In Scotland, there is only one decree necessary in a
+divorce suit. That one decree is final. The law in this country should
+be altered to resemble the Scotch law in this respect, at any rate. The
+_entr’acte_ which separates the decree _nisi_ from the decree absolute
+is generally a great hardship on a perfectly innocent party. It
+inflicts an un-English penalty which might well be deleted from the law
+of the land. Why should some drooping little petitioner of the feminine
+gender, already distraught with the aftermath of acute anxiety, be
+subjected to a fresh period of tension, prolonged for another six
+months? Somehow, one wonders why such a flagrant misconception of true
+justice should remain on the statute book. Of course, were it not for
+such anomalies, there would be no reason to look upon divorce law as
+a subtle and mysterious creation of the Devil, or as an involved and
+merciless contribution to penal literature, but, in its existing state,
+a good deal of harsh criticism is perfectly fair.
+
+The law of divorce should be a set of social rules applied to the
+law of nature, and little else. Complicated procedure, or difficulty
+in obtaining bare justice, is entirely beyond the mark in this branch
+of jurisprudence. The Crown--one hesitates to say “the State” in these
+days of attempted Socialism--could confer a practical benefit on the
+public by reducing the whole law of divorce to a few simple issues,
+free from the ramifications of torment and irritation which apply at
+present. A Royal Commission is not needed to unconsciously hide, rather
+than to uncover, the discrepancies of the law. The process of wallowing
+in volumes of evidence is confusing to say the least. It is a process,
+nevertheless, which, it may not be impertinent to assume, is the main
+fault with the Royal Commission on Divorce. It has sat and sat and sat
+again. It has heard the evidence of persons theoretically qualified to
+give evidence on the subject. It has listened, not without impatience,
+perhaps, to every sort of opinion, some, by the way, of a praiseworthy,
+and even ingenious character, but a frank contemplation of life as it
+is would have resulted in a better point of view than all the formal
+procedure on earth combined. An absence of sufficient consideration, so
+far as the purely human side of a problem is concerned, must inevitably
+lead to failure where the subject is divorce--of all things. For
+instance, as the law stands, what is the result of tying the hands
+of an erring husband and an erring wife? One of two things. Either
+the loose condition already illustrated, or the connivance of the
+parties in question, in the matter of a petition. Both are hopelessly
+undesirable, even wicked, and, consequently, no honest support can
+be extended to a continuance of such a legal anomaly. A law which
+gives any inducement to vice, directly or indirectly, or makes vice
+an alternative to uncomfortable virtue, unexpected virtue, should be
+definitely altered to meet the demands of the social system.
+
+There are many other variations arising from the existing state of the
+law. Suppose a married woman commits adultery and her husband takes
+action to secure a divorce. The six months interval between the decree
+_nisi_ and the decree absolute may just frustrate a co-respondent’s
+desire to marry the respondent in time to give his name to a child of
+the _liaison_. All these things should be considered, indeed _would
+be_ considered, if the members of the Divorce Commission were to deal
+with the whole question from a human standpoint, rather than from a
+standpoint of apathetic contemplation.
+
+A unique grasp of a tangled skein was recently exhibited by a judge
+of the Probate, Divorce and Admiralty Division of the High Court of
+Justice, when a woman who, it was shown, had misconducted herself,
+was nevertheless granted an absolute decree of divorce against her
+husband.[3] It appeared that the woman, who petitioned, had passed a
+very dreadful life, which began by her seduction by her father’s groom.
+The groom became her husband; she ultimately took divorce proceedings
+against the man, but lapsed herself before obtaining the final decree.
+The judge took a magnanimous view of the facts, sympathised with the
+petitioner in her unfortunate life, and granted her what she sought.
+The whole course was novel, but it left people with the impression that
+greater justice had been done in this way than would have been done
+had the judge refused the divorce. The case is not without interest as
+a precedent. It savours of benignity and commonsense, coupled with a
+sufficient disregard for inadequate conventional methods. The prospect
+of lifting a fallen woman, from a sordid atmosphere to a plane of
+respectability, no doubt chiefly actuated the judge in his decision.
+His summing up, indeed, made this perfectly clear.
+
+The existence of the peasant is not, perhaps, intellectually
+interesting, as a rule, but his predicament, were he minded to take
+divorce proceedings, would contain some instructive matter. In the
+first place, his method of attacking such a question would be to
+petition _in formâ pauperis_. This is more easily said than done, for
+a tough and wide-awake solicitor must first be convinced that he is
+justified in giving credit to the would-be litigant. Giving such credit
+really means that he must be confident that it will be satisfied in due
+course by the authorities. He therefore considers the facts of the case
+with more than ordinary self-interest. The influence most likely to
+induce him to take up the case is the reasonable certainty of success.
+The anxious divorce candidate must perforce be capable of making his
+facts very clear and speaking, if he wishes to secure the services of
+the solicitor. When this feat has been accomplished, he is in a fair
+way to proceed _in formâ pauperis_.
+
+A singular case of matrimonial difficulty, where the parties were
+of the lower orders, was recently brought out in the Norwich County
+Court. The facts arose in a claim, or rather in two claims, under
+the Workmen’s Compensation Act. It appeared, that a man named Mathew
+Charles Clarke was killed while working for the Norwich Corporation.
+Two compensation claims were at once put forward by two women, each
+woman setting herself up to be the man’s wife. According to the report,
+Mathew Charles Clarke, the defunct workman, married a woman named
+Elizabeth Shreeve in the year 1870. This important ceremony took place
+at Norwich. In 1873, the happy couple migrated to Newcastle, with the
+two children of the union. The following year they all returned to
+Norwich, in order that Clarke might go through his annual training in
+the Militia. The villain of the piece, a Militiaman called James Leech,
+then appeared on the scene. His initial _rôle_ was that of a friend
+of the husband. When the Clarkes returned to Newcastle, Leech, most
+appropriately named, went with them. His status was that of a lodger in
+the household. The personality of the man must, for his humble sphere,
+have been great indeed, for, in 1875, we find Mathew Charles Clarke
+ousted from his house and from his wife’s embraces; ousted, even, from
+Newcastle. Leech and Mrs. Clarke remained, while poor Clarke was only
+too glad to get back to Norwich alive. In 1886, eleven years after
+his departure from Newcastle, Clarke went through a form of marriage,
+before the Registrar at Norwich, with a woman named Elizabeth Cotton.
+This woman lived with him as his wife until his death. She did not
+know, it may be added, that he had ever had any previous matrimonial
+experience. From 1875 until 1888, Mrs. Clarke and her quondam lodger,
+Leech, remained at Newcastle. Then, they, too, returned to Norwich. No
+doubt they expected to make a “good thing” out of Clarke’s death, for
+no sooner had the man been killed than Mrs. Clarke put in her claim
+for compensation. Elizabeth Cotton, who had long believed herself to
+be the lawful spouse of Mathew Charles Clarke, then discovered to
+her dismay that her alliance was fictitious in law. She, however,
+persisted in her claim for compensation. No doubt a dramatic scene
+took place in the County Court, when the two fair relicts of Mathew
+Charles Clarke, deceased, shrieked their rights at the judge. We have
+heard of the Rights of Man, but they are as nothing alongside of the
+rights of women--more particularly of the class in question. His Honour
+Judge Mulligan, K.C., who heard the claims, was no doubt sorely tried
+before he was able to say, “I infer that Clarke was well aware of the
+relations between his wife and her lodger, and would, if he had been a
+man of means, have employed one of the esoteric counsel in the Divorce
+Court to obtain a dissolution of his marriage. But he had not the
+means to go to London, and there is no Divorce Court in Norfolk. The
+Divorce Act is, in fact, administered only in London, and there only
+for the relief of a few wealthy persons who suffer from the erotic
+misadventures of a few others of the same class--for the relief only
+of rich victims of the naughty rich. So far as workers in the country
+like Clarke are concerned, the Divorce Act might as well not have been
+passed. As there was no practical means of dissolving his marriage, the
+man committed the crime of bigamy.” His Honour concluded by saying,
+“The Workmen’s Compensation Act does not palliate bigamy; it does not
+subsidise adultery.” Judgment was given for the mayor and corporation,
+and both claims for compensation were dismissed. Sordid as this story
+may be, it seems to forcibly express the necessity for extending
+cheap divorce facilities to the County Courts. Certain days might be
+set aside for the hearing of divorce cases, without overtaxing the
+mentality or the endurance of the learned judges. It might even afford
+them some trifling reaction from the constant billow of petty money
+claims.
+
+Public policy in this age certainly supports cheap divorce facilities.
+After all, there is no reason why a systematic reduction of law
+expenses should not be brought about in all the courts of the land. As
+matters stand, the rapacity of solicitors is more to blame than the
+high fees of well-known counsel. If a solicitor is “skilful in drawing
+a bill of costs,” his future is assured, as many a client knows to his
+or her misfortune. The degree of skill becomes apparent by the amount
+of the bill after it has passed the Taxing-master! The thousand and
+one details which can be colourably incorporated in a bill of costs,
+arising out of divorce proceedings, are often a revelation to the
+professional eye. Every man believes _his_ solicitor to be honest. Let
+the day of disillusionment be far off!
+
+A matrimonial case of curious interest recently came before the
+courts. It was an almost unique instance of the length a woman will
+go, on the force of an impulse. The President of the Probate, Divorce
+and Admiralty Division, described the facts as “extraordinary.” So, in
+truth, they were. On February 4th, 1910, a married woman named Dean set
+out for Olympia, with her sister, Mrs. Smith. They were accompanied
+by a male acquaintance of Mrs. Smith. It was adduced by the evidence
+that the husband of Mrs. Smith objected to the “male acquaintance”
+referred to. Mr. Smith, a commercial traveller, discussed the matter
+with his wife on the following day. It has since been alleged that
+there was a scene, in the middle of which Smith threatened his wife
+with divorce proceedings and divers other ills. Mrs. Smith was
+naturally very much agitated and appealed to her sister, Mrs. Dean, for
+a solution of the difficulty. The latter proved herself to be a woman
+of ready resource, for she replied, “I will say I have misconducted
+myself with Henry!” (“Henry” was Mrs. Smith’s husband.) Mrs. Smith
+was very grateful, indeed, and asked her sister whether it would be
+all right. Mrs. Dean reassured her on this point, and the “plot” was
+complete. It was then agreed that Mrs. Smith should communicate the
+fact of his wife’s adultery to Mr. Dean. The upshot of it all was
+that Mrs. Smith telephoned Dean, without further delay. It was under
+these circumstances that at an interview, soon afterwards, Mrs. Dean
+confessed to her husband that she had in fact committed adultery with
+her brother-in-law, Henry Smith. She, however, refused to put her
+admission into writing. On February 7th, in the presence of other
+persons, her mother, sister, etc., Mrs. Dean told her husband that
+the whole incident was a concoction on her part, and that there was
+no truth whatever in the recent “confession.” Dean refused to believe
+her and took steps to petition for divorce. In answer to the judge,
+at the hearing, Mrs. Dean said that her sister had never believed the
+confession, and had never accused her of having misconducted herself
+with Smith. When the co-respondent, Smith, went into the witness-box,
+he said that he had hardly treated the question seriously. He had heard
+about the plot sometime in February, and he then and there told his
+wife and her sister that they must have been mad to have conceived
+such a thing. The petitioner, Dean, informed the court that he had
+never known anything about the plot until that day. In the result, the
+jury found that there had been no misconduct, and the petition was
+dismissed, with costs.
+
+What is known as the “restitution of conjugal rights” might as a
+phase of matrimonial law be consigned to the scrap-heap.[4] A certain
+petition of this class attracted some interest three or four years
+ago, when a married woman, judicially separated, brought her husband
+into court as a respondent. Though this story has no legal point, it
+may perhaps be given here. In a few words, the petitioner, who, it
+was alleged, was addicted to drink, had gone to Switzerland. She was,
+as already stated, judicially separated from her husband, and, in
+consequence, a petition for the restitution of conjugal rights would
+have been entirely out of the question, unless, of course, the husband
+had committed some act to render the force of the separation void. The
+petitioner’s case was that her husband had followed her to Switzerland,
+and had there had intercourse with her. His story, on the other hand,
+was that he had gone to Switzerland to obtain the custody of a certain
+child of the marriage, owing to the mother’s inability to take proper
+care of it. He denied that intercourse had occurred between himself and
+his wife. The case was a difficult one to decide, for there appeared to
+be some foundation for the allegation concerning the wife’s habits. The
+judge, however, believed this lady’s version and made an order against
+the husband for the restitution of conjugal rights. The whole case
+centred round the one point. Did the husband have sexual intercourse
+with his wife on a certain date at a certain place in Switzerland? The
+issue was clear enough, but the facts leading up to it were complex in
+the extreme. The weaker vessel gained the benefit of the doubt. All
+such cases are more or less unsatisfactory. If there had been a clear
+divorce, instead of a separation, where these unfortunate people were
+concerned, the Swiss episode would have been unimportant. Several days
+of the court’s time would have been saved in arriving at a decision,
+which, after all, was of small value to either party.
+
+“Among the Romans, divorce did not require the sentence of a judge,
+and no judicial proceedings were necessary. It was considered a private
+act, though some distinct notice or declaration of intention was usual.
+At one period it was the practice for one of the spouses to intimate
+the divorce to the other in an epistolary form, by means of a freedman,
+in presence of seven witnesses, all Roman citizens above the age of
+puberty; and this was no doubt intended to preserve clear evidence of a
+transaction which was attended with such important effects on the civil
+rights of the parties concerned.”[5]
+
+This simple means of obtaining marital freedom contains much to
+recommend itself to the unhappy people who are barbarously tied
+together to-day, in spite of their mutual antagonism of temperament and
+desire. In France, the Civil Code authorises divorce on the following
+grounds: “(1st) Adultery by the wife, or by the husband if he kept a
+concubine in the common dwelling-house; (2nd) Outrageous conduct or
+ill-usage by either of the spouses; (3rd) Condemnation to an infamous
+punishment; and (4th) In a certain limited class of cases by mutual
+consent, but only upon the conditions and under the restrictions
+specified, which are of the most stringent character.”[5]
+
+It is interesting to refer to the Scottish law on the same subject,
+particularly when it is stated by an eminent Scottish judge, Lord
+Mackenzie, in his work on Roman Law. “By the law of Scotland a divorce
+may be obtained by the husband or the wife on the ground of adultery,
+or of wilful desertion for four years together, without just cause,
+after adopting the forms of the Act 1573, c. 55, so far as these are
+still required.... In suing for a divorce in Scotland the wife has
+precisely the same rights as the husband. If she can prove adultery
+or wilful desertion for four years by the husband, that entitles her
+to take proceedings for a divorce, in the same manner as adultery or
+wilful desertion on her part entitles him to a similar remedy....
+The action of divorce proceeds before the Court of Session, and the
+right to institute it is personal to the husband or the wife. As a
+preliminary, the pursuer is required to make oath that the suit is
+not collusive. In this and all consistorial actions the summons must
+be served upon the defender personally when he is not resident in
+Scotland; yet, upon evidence to the satisfaction of the court that the
+defender cannot be found, edictal citation will be held sufficient;
+but in every case where the citation is edictal the summons must be
+served on the children of the marriage, if any, and on one or more
+of the next-of-kin of the defender, exclusive of their children,
+when the children and next-of-kin are known and resident within the
+United Kingdom; and such children and next-of-kin, whether cited or
+so resident or not, may appear and state defences to the action....
+When the husband sues for divorce on the ground of adultery, he may
+cite the alleged adulterer as a co-defender, and the court may order
+him to pay the whole or any part of the costs, or may dismiss him from
+the action, as may seem just.... In the case of adultery, divorce
+is barred by condonation or forgiveness, as well as by collusion or
+connivance. Recrimination cannot be pleaded as a defence to exclude the
+suit, but it may be stated in a counter-action, as the mutual guilt may
+affect the patrimonial interests of the parties.... The legal effect
+of divorce on the ground of wilful desertion under the Act 1573, c.
+55, is, that the offending husband is bound to restore the tocher
+(_dos_), and to pay or implement to the wife all her provisions, legal
+or conventional; and the offending wife forfeits her terce, and all
+that would have come to her had the marriage been dissolved by the
+predecease of the husband. By analogy the same consequences have been
+extended to the case of divorce for adultery, with this exception, that
+it appears to have been decided, upon very questionable grounds, that
+the offending husband in the case of adultery is not bound to restore
+the tocher.... After divorce, both parties are at liberty to marry
+again; but the Act 1600, c. 20, annuls any marriage contracted between
+the adulterer and the person with whom he or she is declared by the
+sentence of divorce to have committed the offence.”
+
+This extract, though somewhat lengthy, seems to give every essential
+point of the Scottish law of divorce in a clear, easily-understandable,
+form. With the exception of the law of 1600, which forbids the
+subsequent marriage of the defender and co-defender--a harsh and
+unnecessary condition--Scotland does not appear to be too ill-favoured
+in her machinery for dealing with divorce. Indeed, there are other
+branches of Scottish law, on which it is intended to touch in this
+work, which contain a better perspective of justice than similar
+branches of law in this country.
+
+Bodies of law grow up by a gradual process, and this gradual process
+generally tends to blunt the faculties of criticism; the law as it is
+seems a part of nature, whereas it is often little else than a bad
+habit!
+
+For persons with a certain taste for legislative phraseology, the
+existing Divorce Act, 1857, will be found interesting. It is the desire
+of the writer to suggest certain alterations, or amendments--or the
+repeal of the Act, with new legislation of a common sense kind to take
+its place. To summarise in a few words the purpose of this chapter, the
+requirements of the day seem to indicate the necessity for:--
+
+(1) A Divorce Court, with a judge or judges exclusively occupied with
+matrimonial causes.
+
+(1a) The transference of Probate and Admiralty work to the Chancery and
+King’s Bench Divisions respectively.
+
+(2) The granting of divorce to either party where domiciliary
+separation has existed for one year.
+
+(3) The granting of divorce to either party where both parties have
+misconducted themselves (in such cases the custody of any children to
+be shared by the parents--six months out of each year the right of
+custody to vest in the mother, and six months in the father).
+
+(4) The abolition of the judicial separation; also, of the separation
+by deed.
+
+(5) The abolition of the petition for the restitution of conjugal
+rights.
+
+(6) One decree of divorce to be final and absolute at the time of
+granting--consequent abolition of the existing form, the “decree nisi”
+and the “decree absolute,” with the objectionable six months’ interval
+
+(7) The system of granting financial provision, _i.e._, alimony, to
+an untainted wife who petitions, to stand on the present basis. Also,
+damages against a co-respondent to stand.
+
+(8) The elimination from a petition of the allegation of “cruelty”
+which now has to be proved by a petitioning wife before she can obtain
+a divorce. Adultery without “cruelty” to form a foundation for a
+successful petition.
+
+(9) The donation of powers to grant divorce to all County Court
+judges, for purposes of expediency in connection with the poor.
+
+These seem the principal points associated with “what the public wants”
+in this age of a better appreciation of the “nature of the beast”--Man,
+or more correctly, Mankind.
+
+
+FOOTNOTES
+
+[2] See Appendix A.
+
+[3] Pretty _v._ Pretty.
+
+[4] “In granting the application of a Paris doctor for restitution of
+conjugal rights, the judges have made an interesting new departure by
+fixing a penalty of £4 for every day’s delay in complying with the
+order of the Court. They consider this the most practical means of
+bringing the recalcitrant wife to reason.”--_Pall Mall Gazette._
+
+[5] Lord Mackenzie in _Studies in Roman Law with Comparative Views of
+the Laws of France, England, and Scotland_.
+
+
+
+
+CHAPTER II
+
+DEATH AND BURIAL[6]
+
+
+The office of the coroner dates back for many centuries, but it has
+never grown to much importance, despite the blazing interest which
+sometimes attaches to it during the preliminaries leading up to a
+notorious murder trial. The coroner may be any one of a great variety
+of things from a barrister to a doctor, from a solicitor to a man
+who can just read and write. It is this variation in qualification
+which has perhaps helped to prompt the persons responsible for the
+introduction of the new Bill--The Coroners’ Law and Death Certification
+(Amendment) Bill.
+
+Too little regard is paid to death by most people, beyond the matter
+of testamentary disposition, and even that is often neglected. Death
+deserves as much consideration as life itself, and to neglect its
+contemplation exhibits a certain want of foresight. It may be that
+from time immemorial it has savoured of supernatural association, but
+after all it is the most ordinary incident of nature to which we are
+subject. One has no hesitation in giving the laws relating thereto the
+advantage of publicity, for the simple reason that they should be no
+less interesting than intimate essays on the rules regulating divorce,
+or marriage, or any other peculiarly human question.
+
+Some estimate of the purpose of the new Coroners’ Bill, will be found
+in the following _Memorandum_:
+
+“This Bill, which does not apply to Scotland or Ireland, is intended to
+remove certain anomalies in the law relating to coroners and inquests,
+and to the certification of deaths, disclosed by reports of several
+committees during recent years.
+
+“The Coroners’ Act, 1887, did little more than codify the principal
+features of the law and practice of coroners, which had become confused
+and complicated by numerous statutes dating from the reign of Edward
+I. In 1893 a Select Committee was appointed to ‘inquire into the
+sufficiency of the existing law as to the disposal of the dead, for
+securing an accurate record of the causes of death in all cases, and
+especially for detecting them where death may have been due to poison,
+violence, or criminal neglect.’ The report of that committee indicated
+the urgent necessity for reform. The Inter-Departmental Committee on
+Physical Deterioration which sat in 1903 also directed attention in
+their report (_vide_ Bill) to the dangers incidental to the defects in
+the law relative to the registration and certification of deaths and
+recommended the registration of still births.
+
+“The law relating to coroners is not adapted to modern necessities;
+its administration is costly to local authorities without securing
+efficiency in results.
+
+“In December, 1908, a Departmental Committee of the Home Office was
+appointed to inquire into the law relating to coroners and coroners’
+inquests, and into the practice in coroners’ courts.
+
+“The provisions of this Bill are intended to give effect to many of
+the recommendations of the Departmental Committee of 1908, and of the
+Death Certification Committee of 1893.
+
+“The report of the Departmental Committee drew attention to anomalies
+existing in the appointment of coroners in certain ‘franchise
+districts’ in the qualifications required of coroners, the conditions
+of their appointment, the mode of their remuneration, the provision of
+deputies, the areas of jurisdiction, etc.
+
+“The law does not at present contemplate inquiry by a coroner except in
+view of a subsequent formal inquest, nor can he order a _post mortem_
+examination except in a case of inquest. The coroner’s officer, to whom
+important duties are confided, is an official unknown to the law. The
+viewing of the body by the jury is still compulsory, though no longer
+deemed necessary in all cases. Attention was also directed by the
+Committee of 1908 to the need for better provision in regard to skilled
+medical investigators and to the remuneration of medical witnesses.
+
+“The Departmental Committee recall the findings of the Select
+Committee on Death Certification of 1893, which have not hitherto been
+the subject of legislation, as bearing directly on the functions of
+the coroner. Thus at present the law does not require a certificate of
+death to _certify as to the fact of death_,[7] or as to the identity of
+the deceased, but merely the cause of death. They further state that
+‘it is no fault of the law if premature burials do not take place.
+_The present law of death certification offers every opportunity for
+premature burial and every facility for concealment of crime._’”[7]
+
+With allusion to premature burial and concealment of crime, the
+_Memorandum_ attached to the new Bill comes to an end. The Bill itself
+settles down to deal with “Coroners.”
+
+Section 1. “Every power to appoint a coroner shall cease upon the
+first occurrence of a vacancy in the office of coroner after the
+_commencement of this Act_.”
+
+Then follow certain references as to the redistribution of coroners’
+jurisdictions. The financial aspect of the office of coroner is not
+neglected.
+
+Section 2. “There shall be paid to every coroner such salary as the
+authority by whom he is appointed and paid may decide, provided that
+after the lapse of five years from the date of appointment of the
+coroner, and of every successive period of five years, it shall be
+lawful for the authority to revise and thereby increase or diminish
+such salary, and if the coroner is dissatisfied with such revision
+the Secretary of State may determine the amount of such salary on the
+application of either the authority or the coroner.”
+
+Another provision which exhibits a certain foresight, defines the
+question of age limit: “Every coroner shall cease to continue to hold
+the office of coroner on reaching the age of sixty-five years, provided
+that the Secretary of State may continue such coroner in office for a
+further period not exceeding five years on the application of either
+the authority by whom he was appointed or the coroner.”
+
+The question of granting the retired coroner an annuity by way of
+superannuation allowance appears to be justly provided for; the
+authority of the Home Secretary is left to decide the amount, together
+with the detailed regulations relating to such payment. What is of
+greater public importance seems to be contained in the next provision,
+which deals with the qualifications of coroners.
+
+Section 5. “No person shall be appointed a coroner unless he be a
+practising barrister of not less than five years’ standing, or a
+solicitor of not less than five years’ standing, or a registered
+medical practitioner who is also a barrister or a graduate in law of
+a University in the United Kingdom, provided that no member of the
+authority making the appointment, or any person who has been a member
+of such authority within a period of twelve months immediately before
+the making of the appointment, shall be eligible for appointment as a
+coroner by such authority.”
+
+On the whole, there is little to criticise or attack in the
+qualifications set out, though it might not be too much to demand eight
+or ten years’ professional standing in the case of a solicitor, instead
+of five. Indeed, it seems scarcely equitable to place a solicitor on
+the same basis as a barrister or an especially highly qualified medical
+practitioner, unless such solicitor has taken a University degree, or
+has had to pass examinations of a more academic character than those
+which obtain at present.
+
+Section 7. “Every coroner’s district shall be provided by the
+authority who appoints the coroner with suitable accommodation for
+holding inquests, and with a coroner’s officer or officers and other
+assistance as may be necessary for the proper carrying out of the
+duties of the office of coroner.”
+
+This provision sounds very well in theory, but are not most populous
+centres already equipped with the necessary facilities for conducting
+an inquiry? If any such populous centre exists which is not so
+equipped, then the provision is most essential. But in outlying country
+districts, to centralise the place of inquiry would involve carting
+the dead body a great distance, to the probable discomfiture and
+inconvenience of the surviving relatives. In average cases, there is no
+special need to subject a dead body to more than ordinary scientific
+investigation, as near the place of death as possible, to fulfil the
+intentions of the law, and to have it tumbled across a county and back,
+with incidental delays is, one may safely say, somewhat unnecessary,
+if the natural feelings of surviving relatives are to be considered.
+An ordinary country house is usually sufficiently well adapted for
+the purposes of holding a _post mortem_ examination and a coroner’s
+inquiry. The customary system of using a local inn is not altogether
+bad, either, when it is remembered what a small number of inquests are
+anything like necessary in country districts.
+
+Section 9. “Notwithstanding anything in subsection (1) of section
+three of the Coroners’ Act, 1887, a coroner after due inquiry into
+any case referred to him may decide not to hold an inquest if he is
+satisfied that the deceased died a natural death.... For the purposes
+of an inquiry under this section, the coroner may order a _post mortem_
+examination, and the cost of such examination, being such sum as the
+Secretary of State may by regulation prescribe, shall be defrayed as if
+the examination were made in connexion with an inquest.”
+
+In section 10, there is provision for the appointment of standing
+“medical investigators or pathologists” in each coroner’s district
+to assist the coroner in his inquiries and inquests and to make
+_post mortem_ examinations. The next section refers to the payment
+of ordinary medical witnesses, as opposed to the coroner’s “medical
+investigators or pathologists.” Section 12 of the Bill makes some
+sentimental provision in connection with the coroner’s jury and the
+question of “viewing the body.” It is of no great importance or
+interest one way or the other. Section 13, on the contrary, is of
+definite value from a legal standpoint. “Every coroner,” it settles,
+“shall cause a record of every inquiry and inquest to be kept, and
+shall transmit such record to the clerk of the [county] council or
+borough council, as the case may be, and it shall become the property
+of such county council or borough council, as the case may be, and such
+record shall be so made and transmitted as the Secretary of State may
+by regulation prescribe.”
+
+In section 14, it is provided that “The Secretary of State may frame
+rules and orders for regulating the procedure or practice of coroners’
+inquiries and coroners’ courts, and forms of proceedings therein, the
+fees to be charged for copies of depositions, records, or any document
+in the custody of the coroner or the local authority, and any other
+matter not regulated by statute on which it may, in the opinion of the
+Secretary of State, be desirable to prescribe the practice of coroners,
+and may from time to time amend such rules, orders, forms and fees.”
+
+It is to be hoped that this section will be the means of establishing
+the rules of procedure on an exact basis. Also, there is no reason
+why the rules relating to evidence should not be applied with as much
+strictness in a coroner’s court as in a Metropolitan Police court. It
+is true that in numerous cases a coroner’s inquest savours more of a
+_quasi_-scientific investigation than a legal inquiry, but it should
+be borne in mind that it is primarily concerned in upholding the law
+by checking or discovering crime. Candidly, a better appreciation of
+this aspect of his functions would improve a coroner’s status among
+legal practitioners. Whether a man died from cerebral hemorrhage or
+syncope is really of little importance, provided he did not die by
+some unnatural means. The everlasting verdict, “Death from Natural
+Causes,” is far too frequent. Admittedly, where a medical practitioner
+has refused to certify the cause of death, the coroner has in the past
+been bound to order an inquiry, but in numberless instances the result
+of a great deal of trouble has merely been a verdict of natural death.
+Of course, this is not to be construed to apply to cases originating in
+suspicion. Where there is suspicion, there should be an inquest. Where
+there is no suspicion as a _raison d’être_ for an inquest, there should
+be no inquest.[8] This would do away with hundreds of useless and even
+expensive inquiries. The “medical investigators or pathologists” of the
+new Bill should often be able to satisfy themselves, by the appearance
+of the body and the circumstances attendant upon the death, without
+having recourse to a _post mortem_ examination.
+
+It might be fairer to the pathologists were they to receive a fixed
+remuneration per annum, irrespective of the number of bodies subjected
+to scrutiny or to internal examination. The remuneration could be
+based on yearly averages, when the perfectly natural incentive for
+an extra two guineas would be absent in deciding them in favour of a
+_post mortem_ or against the necessity for it. It is not suggested
+that a reputable pathologist would be much influenced by a trifling
+fee, but where he is to receive payment for doing a thing, and nothing
+for not doing it, he perforce does it. Then, too, where a person has
+the power to decide whether or not the carrying out of a _post mortem_
+is necessary, there is a tendency for him to give more attention to
+all the various circumstances of the death than he might otherwise
+feel himself obliged to do. A highly qualified man, with the power of
+independent judgment, does not deliberately set himself a task unless
+he believes its performance to be essential. By giving some such
+power to the “medical investigators or pathologists,” a great deal of
+superfluous work would be saved. The question of reducing every coroner
+to a fixed salary--_i.e._, a salary not dependent on the number of dead
+bodies on which inquests are held--would be a further advantage both to
+the coroners and to the community. The system of so much per head per
+corpse is obsolete; if it is not exactly obsolete, it ought to be so.
+
+The second part of the Coroners’ Law and Death Certification
+(Amendment) Bill is concerned with questions of death certification
+and burial. Section 16 of the Bill, which is the first in Part II.,
+sets out that “No death shall be registered under the Registration
+Acts without the delivery to the registrar of a certificate of death
+duly signed by a registered medical practitioner, or by a coroner,
+after holding an inquiry or inquest.” The next section goes on to say
+that, “Before giving a certificate of death, a registered medical
+practitioner shall personally inspect the body and identify it as the
+body of the person named in the certificate whom he has attended during
+his last illness, and shall _certify to the fact of death as well as to
+its cause_.” (The italics do not appear in the Bill.) Sections 18 and
+19 are uninteresting, merely containing, as they do, particulars of the
+form of death certificates and the method of filing the same.
+
+Section 20. (1) “When the registered medical practitioner who attended
+a person during his last illness is unable to give a certificate of
+death, he shall forthwith notify to the coroner the fact of such death
+with the reasons for his inability to give such certificate.” (2) “When
+no registered medical practitioner has attended the deceased person
+during his last illness, the relatives, friends, or other persons
+having cognizance of the death, or of any doubtful or suspicious
+circumstances attending the death, shall themselves report full
+particulars thereof to the coroner.”
+
+Section 23. “Every person who shall bury or otherwise dispose of any
+dead body shall certify, by endorsement of the burial order (which
+endorsement shall be in the form set forth in the Second Schedule to
+this Act), the name of the place, the date, and the mode of burial,
+or other mode of disposal of the dead body, and shall send such order
+to the registrar of deaths in whose district the death was registered
+within five days after such burial or other disposal of the dead body.
+Such certificate shall, together with the certificate of death, or
+finding of the coroner after inquiry, or verdict after inquest, as the
+case may be, be entered in a book kept for the purpose, to be called
+the ‘register of deaths and burials.’” Then follow penalties for
+non-compliance with the regulations specified.
+
+Section 24. “No person responsible for the burial or other disposition
+of any dead body shall retain the same, or delay the burial or other
+disposition of the same for any longer period than eight days after
+death, except with the previous written consent of a justice of the
+peace. Before giving this consent such justice shall be satisfied that
+such retention or delay is reasonable, and the consent shall state
+the period and grounds of such retention or delay. Any person who
+fails to comply with the provisions of this section shall, on summary
+conviction, be liable to a fine not exceeding _five pounds_ for every
+day during which he fails to comply as aforesaid.”
+
+Part III. contains one important provision. “Any dead child which has
+issued forth from its mother after the expiration of the twenty-eighth
+week of pregnancy, whether alive or dead, shall be the dead body of a
+person within the meaning of the Coroners’ Act, 1887, and this Act, and
+a person within the meaning of the Births and Deaths Registration Act,
+1874.”
+
+By the foregoing extracts from the new Bill, it will be seen that a
+greater attention is to be paid to establishing _the fact of death_,
+something which hitherto has been left to be implied from the nature
+of the certificate. The intention of the provision is, of course,
+excellent. It may even help to abate the nervousness of persons who go
+in dread of burial alive. But its practical value will be dependent
+on the precautions taken by the individual medical practitioner in
+his examination of the corpse. The routine of examining dead bodies
+becomes as commonplace as any other routine, and it might not be a bad
+policy to include a provision for a definite test by which the medical
+practitioner could finally _prove the fact of death_.
+
+Cases of premature coffining may be extremely numerous or extremely
+rare. It is a purely speculative question. There is, however, little
+doubt that where a supposed dead body is left to the tender mercies
+of funeral scavengers, few of these men would scruple to coffin the
+same, though still animate, if the chance of discovery were remote.
+And the chance of discovery would be remote--indeed, it might be quite
+absent in nine out of ten such cases. Obviously, the most perfect way
+to prevent premature coffining would be for the relatives or friends
+of the deceased to retain possession of the body until definite
+indications of decomposition or putrefaction were present. In many
+cases, the eight days allowed under ordinary circumstances by the
+new Bill would enable interested persons to secure evidence of this
+character.
+
+An advantage which England has over France lies in the fact that
+in this country hasty burial has never been enforced. The climate
+here certainly lends itself to a comparatively tardy process of
+decomposition. In tropical countries, when a man dies his body is
+buried or otherwise disposed of a few hours after death. In France,
+unless special permission is obtained from the local authorities
+(which involves having the body embalmed), it is usual to carry out
+burial within forty-eight hours from the time of death. This applies
+to the North of France, Normandy and Brittany, where hasty burial is
+in no sense climatically necessary. But there are many other things
+associated with French regulations regarding the dead which would not
+find much support in this country. The grave lease, for instance,
+which merely secures _temporary burial_, is one. A person dies and a
+grave is leased for five years. At the end of the five years, the body
+may be exhumed, and, for want of a better purpose, it is removed to a
+factory where the residue of the decomposed flesh is boiled off, or
+steamed off, and a skeleton is the result. The skeleton is afterwards
+sold to the anatomical specimen dealer. As a regular traffic, the
+whole scheme is odious and would not appeal to the legislators of this
+country. Another French institution for the disposal of the dead is the
+“funeral pomp monopoly.” A _concessionnaire_ obtains the right to bury
+all the dead in a certain district, with the result that there is no
+competition and no choice of undertakers or methods left to the person
+who is responsible for the burial of a friend or relative. In Havre, in
+Rouen, in Paris, these monopolies exist. One finds them in the smaller
+towns, too, where the old peasant in the street feels distinctly
+uncomfortable, on beholding the very men who will certainly pack him in
+his coffin the moment he dies!
+
+The employment of an undertaker is in no sense obligatory in
+England, and an amateur funeral, needless to say, is just as legal as
+a funeral carried out by Peter Robinson or Maple and Co.![9] There is
+also no reason why the persons who die in a certain district should be
+buried or cremated in that district. The law does not interfere with
+sentimental preference. In England, the voluntary choice of burial
+place,--means, method, etc.,--is legally sanctioned. To a material
+mind, however, it is absolutely incredible how the people themselves
+at this advanced epoch continue to employ the ludicrous top-hatted,
+woebegone scarecrows, whose only function is to carry a piece of
+furniture to a wagon, also equally grotesque in its appearance, and
+a little later on to discharge the burden at a graveyard, a railway
+station or a crematorium! The day of undertakers’ “mourners,”
+desperate-looking hearse-drivers, and other _bizarre_ mockeries
+connected with funerals, should be ended by the force of common sense.
+The system continues through habit, through a certain repulsion
+which many people have for giving practical thought to death and its
+circumstances.[10]
+
+
+FOOTNOTES
+
+[6] See Appendix B.
+
+[7] Mr. Chester’s italics.
+
+[8] “The Isle of Wight Coroner to-day decided that an inquest was
+unnecessary on Sir Alfred Lyall, who died suddenly at Lord Tennyson’s
+yesterday. Sir Alfred’s medical attendant has certified that he
+was suffering from angina pectoris. The funeral will take place at
+Harbledown, near Canterbury.” From the foregoing paragraph in _The Pall
+Mall Gazette_, April 11, 1911, it will be seen that the discretion
+allowed the coroner has been well employed. Though Sir Alfred Lyall
+fell down dead in his room, there was obviously no cause for an inquest.
+
+[9] “The French have the reputation of being a witty people, but
+although they have shaken off belief in revelation, they are to the
+last degree credulous in other things. No invention, says _The British
+Medical Journal_, seems to be too silly for a French paper to palm off
+on its readers when it deals with English matters. Not long ago it was
+gravely announced in a French medical journal that an English company
+had been formed to work a patent for the installation of cremation
+ovens in private houses.... Our contemporary, which professes to quote
+from a circular issued by the new company, states that the apparatus is
+therein described as ‘a gas furnace, low, but long and wide, covered
+with a steel case, into which the coffin is introduced.’ The corpse,
+it is said, is burnt in a few seconds. The oven must be heated an hour
+beforehand. For those who do not happen to possess this convenient
+arrangement among their household furniture, the company offers it
+on hire. All one has to do is to telephone to the right address and
+the company will forthwith send the apparatus with skilled operatives
+to work it. The price of the whole apparatus is given at £90, and
+the total cost of the operation as £2. But the company hopes that if
+its affairs prosper it will be able to reduce the price. Here, says
+our contemporary, is an idea which could only spring from the brain
+of an Anglo-Saxon.... To this we reply that the idea, wherever it
+sprang from, could only have been published in a French journal. This
+suggested addition to the comforts of the English home opens up wide
+possibilities. We are recognised as the pioneers of sanitation. Are not
+our water-closets diffused throughout the civilised globe? The bathroom
+has followed, though to a much more limited extent. A home crematory
+would certainly have several advantages, alike from the sentimental
+and the practical points of view. The crematory _à domicile_ would
+sweep away once and for all the mourning coaches, undertakers’ men,
+and all the trappings and ceremonies that make death hideous to all
+but those ghouls who find an unholy joy in the last rites paid to a
+defunct fellow creature.... With the home crematory available the only
+funeral-baked meat would be the corpse of the deceased. Now that we are
+told to lead the simple life, here is a way of getting rid once and
+for all of one of the most artificial ceremonies of civilised life. A
+crematory in the home would also supply to unscrupulous persons who
+wished to get rid of inconvenient relatives an easy way of disposing of
+the compromising remains. Lest the lively but simple-minded Gaul should
+misunderstand us, we hasten to add the warning which Artemus Ward
+found necessary for his readers, that this is a ‘goak.’”--_Pall Mall
+Gazette_, April 15, 1911.
+
+[10] It has frequently occurred to the writer, who has made a practical
+study of such subjects, that the conduct and methods of persons who
+traffic in the disposal of dead bodies should be brought into the
+closer cognizance of the law. A regular system of police inspection
+is required. The acts and omissions of the irresponsible scavengers
+who thrive on burying the dead are often of such a character that the
+law itself is infringed. A popular weekly paper contains the following
+passage in its current issue:--“In one of the poorer districts of
+Manchester the police have just found on the premises of a female
+undertaker the bodies of nine children--all very young, seventeen
+days being the oldest--waiting until the parents could secure the
+necessary burial fees, to be buried. The remains were discovered in
+an outhouse; and, impossible as it may seem, one body had been there
+for two weeks.... On making inquiries, I find that there is nothing at
+all unusual in this procedure. The poorer people are very sensitive
+where their dead are concerned, and have a great aversion to what is
+termed ‘a pauper’s grave.’ It is in times of trouble or death that
+the real good-heartedness of the working-class shows itself. Directly
+the neighbours learn that the house of someone in their midst has
+been visited by death, a subscription is started. However, as they
+are in receipt of only a meagre wage themselves, a week or so often
+has to pass ere sufficient has been raised to satisfy the undertaker,
+and apparently his premises are used as a sort of pawnshop for dead
+bodies.... When a child has had a separate existence, the doctor
+gives a certificate of death, and a _post mortem_ is not necessary.
+Consequently, it is very doubtful if anything further will be heard
+about the matter.”
+
+The poor make, relatively, the easiest victims in connection with
+funeral extortions. One hears of defunct costermongers being carted
+to the grave in four-horsed hearses, etc.! A good example of funeral
+extravagance is to be found in the subjoined paragraph:--“_Miner’s
+Funeral Costs £40._--It was shown at Pontefract County Court, on
+Tuesday, that the mother of a miner, just deceased, had spent £40 on
+the funeral. This sum included £5 10s. for tea to 110 persons who
+attended. There was also £10 for dresses, and the mother had borrowed
+£16 to make other payments.”
+
+It is interesting to note that there is no right of property in a
+corpse. It is usual, however, for the executors of the deceased to have
+possession of the body and to control the means and method of disposal.
+
+
+
+
+CHAPTER III
+
+WILLS
+
+
+The will or testament of a man is one of the most important instruments
+of the law, affecting as it sometimes does the disposition of immense
+wealth, great estates, or other possessions. It is one of the simplest
+things in the world to draw correctly, to execute correctly, and to
+make binding on the successors of the testator. On the other hand,
+there is nothing in the whole law more capable of signally failing
+through some trifling omission.
+
+People have a tendency to go to a solicitor for the purpose of having
+a will drafted, but, while this is generally a good precautionary
+measure, if the solicitor be a reputable member of his profession,
+it is not altogether necessary. It is of no legal account whether a
+testator writes out a holograph or gets someone else to draw up the
+terms of a will for him. A typewritten document is equally as good as
+either. The main points connected with the subject can be set out in a
+few words. A testator must sign the will at the foot or end thereof,
+or it may be signed by some other person in his presence and by his
+direction; and such signature shall be made or acknowledged by the
+testator in the presence of two or more witnesses, present at the same
+time; and such witnesses shall attest and shall subscribe the will
+in the presence of the testator, but no form of attestation shall be
+necessary. Every will shall be construed, with reference to the real
+estate and personal estate comprised in it, to speak and take effect as
+if it had been executed immediately before the death of the testator,
+unless a contrary intention shall appear in the will. No will made
+by any person under the age of twenty-one years shall be valid. As a
+general rule, every will made by a man or woman shall be revoked by
+his or her marriage. All gifts or legacies by will to an attesting
+witness, or to the husband or wife of such witness, or to any person
+claiming under either of them, shall be void; but such witness shall
+be admissible to prove the execution of the will. On the face of it,
+these rules are easily grasped and easily conformed with, though the
+slightest divergence from them, or an oversight, may prove fatal to the
+validity of the will. For instance, it is of vital importance for the
+testator to sign his will in the presence of the two witnesses, and
+for the two witnesses to sign in each other’s presence[11] and in the
+testator’s presence.
+
+This particular formality is perhaps the most important of all, as
+matters stand. An illustration will presently be given to bring this
+fact out more clearly. Some effort will also be made to exhibit the
+possibilities of injustice in connection with the execution of a will.
+These “possibilities” have become “certainties” too often in the past.
+Anomalies of the law can be found in hundreds of will cases, but the
+writer is now chiefly concerned with exposing flagrant examples of
+injustice arising out of a too strict regard for formality as opposed
+to _intention_. Intention, too, is of great legal importance in many
+directions, notably in crime, and, indeed, in the construction of
+wills as well, but it is of little account if it is not supported
+by the usual formalities of execution. Such matters come within the
+jurisdiction of the Probate Court, the Divorce Court transformed for
+the occasion. (The chameleonic complexion of the Probate, Divorce and
+Admiralty Division of the High Court of Justice, has already been
+touched upon.)
+
+The primary object at present is to show, quite simply, the working of
+the Statute of Wills, which came into operation January 1, 1838.
+
+Towards the end of the month of March, not many years ago, _A_, the
+son of _B_, was asked by _B_, his mother, to instruct a solicitor to
+draft a will, leaving him, the son, all the real and personal property
+of which she, the mother, died possessed, or which might fall in to
+the credit of her estate. She told _A_--her only child (the offspring
+of her first marriage)--that she had already provided for her second
+husband, _C_, during the years of her married life. The son duly
+carried out his mother’s request, though he had little suspicion that
+her death was at hand. Nor had she, in spite of the fact that she was
+supposed to be suffering from influenza, and had a nurse in attendance
+at the time. In due course, the draft will was left at the house by
+the solicitor. _A_ gave the matter no more attention, and for several
+days received favourable reports of his mother’s illness, both from
+her medical attendant, and from the trained nurse. On April 1st, an
+ominous date, he called at _B’s_ house but could not see her. The
+nurse, however, informed him that it was likely to be a long though
+not a dangerous illness. This was at five o’clock in the afternoon.
+At or about three o’clock the next morning, _B’s_ manservant arrived
+at _A’s_ chambers with a summons for him to go to his mother at once,
+as she was _in extremis_. _A_ hastened to dress, and, after a delay
+in finding a cab--for the servant had come on foot through _C’s_
+intervention, _though the distance was four miles_--he hurried to
+his mother’s bedside. On arriving there, he found two nurses and a
+doctor present. _A_ asked whether the will had been executed, and his
+mother, who overheard the question, intimated that it was in a chest
+of drawers. _B_ was then given the will; she struggled to a sitting
+posture; the doctor handed her his fountain pen, but it was found to
+be dry. _A_ then went downstairs to obtain some ink. On returning, he
+discovered _C_, who had entered the room during his absence, standing
+over _A_, with what was afterwards described in the Coroner’s Court as
+a very menacing expression. _B_ held the pen and the draft will. In the
+presence of the doctor and the two nurses, she made a frantic effort to
+execute the document, which, had the pen been moist, would have borne
+markings, but her last spark of vitality gave out before she could be
+passed the ink. She fell back, whispering according to the evidence of
+the nurse standing nearer to her, “Thank God it’s done!” She was dead.
+
+Here we have a testatrix at the point of death, still conscious and
+of perfect understanding, making a tragic effort to sign a will, in
+the presence of three reputable and disinterested witnesses. _A_ and
+_C_ can be left out of the question: they were interested parties; one
+under the will, and the other against it. In the result, the efforts of
+_B_, in her desire to secure her son in his natural rights, were quite
+futile. The dramatic scene in the chamber of the dying might just as
+well not have been enacted. According to English law, the will was not
+worth the paper it was written on; in fact, it was no will at all, as
+the pen in _B’s_ hand was dry. A peculiar injustice of the law, sorely
+felt in the case illustrated (where almost the whole estate consisted
+of personal property, _i.e._, stocks and bonds), lies in the fact that
+a husband, be he first, second or third, takes his intestate wife’s
+personalty absolutely, quite without regard to children of the marriage
+or of a previous marriage. A married woman may leave a very large or
+a very small estate in personal property, but if she dies intestate
+it goes to her surviving husband. It was thought a great thing when a
+married woman was first allowed to make a will as if she were still a
+_feme sole_. It would be, if not a greater thing, at least a protective
+measure where there are children, if the personalty of an intestate
+wife did not go absolutely and unconditionally to her husband.
+
+The facts relating to _A_, _B_, and _C_, can be supplemented by a
+further illustration in connection with the law of wills.
+
+It is in the nature of a sequel, for _A_ and _C_ are parties to
+it, and probate of the will of _B_ is the question at issue. Two or
+three years before her death, _B_ confided an envelope endorsed in
+her own handwriting to her son _A_. This incident took place at a
+fashionable French watering-place, just prior to the departure of
+_B_ (_A_ was remaining on). The writing on the envelope, which was
+sealed, announced that it contained “The last Will and Testament of
+_B_.” _A_ threw the envelope, carelessly, into a trunk with a mixed
+assortment of other papers. The trunk ultimately found its way to a
+country place of which _A_ was tenant. It was then and there forgotten,
+until the death of _B_ recalled the question of the endorsed envelope.
+An anxious investigation ultimately brought it to light, when it was
+found to contain a holograph will in the un-legal phraseology of the
+deceased lady. It was signed and witnessed approximately in due form.
+The signature of one of the witnesses was, however, that of the wife
+of _C’s_ brother; the other was that of a servant in her employ. This
+servant, who had subsequently married and disappeared, was traced, and
+she forthwith made an affidavit that _B_ had signed the will in her
+presence, and in that of the other witness; furthermore, that she, the
+servant-witness, and her mistress, had both attached their signatures
+in each other’s presence and in that of the testatrix. This was clearly
+perfectly true. Steps were then taken to prove the will, but owing to
+certain fictions on the part of the other side--statements that there
+was still another will, etc.--it became necessary to prove the will
+_in solemn form_. With the exception of an omission to appoint an
+executor, the will was complete and definite in its wording. _A_ was
+left everything. Unfortunately, twenty shares of stock, worth several
+thousand pounds, were mentioned as having been given on a certain date
+to _C_. Mention of this gift should not have been referred to in the
+will, which was about six years old. It was clearly the confirmation of
+a gift, so that it could be shown that _C_ had profited from time to
+time to a considerable extent during his wife’s lifetime. Meanwhile,
+during the six years which had elapsed between the making of the will
+and the death of _B_, _B_ had exchanged with _C_ the stock referred
+to in the will for other property of equal or greater value. When the
+case got to the Probate Court, _C_, after taking action to obstruct the
+free passage of the will by entering a _caveat_, agreed to withdraw
+opposition if he were forthwith handed half the stock in dispute. _A_,
+forced into a financial corner by an intimation that the wife (one of
+the will witnesses) of _C’s_ brother would come forward and swear that
+she and her servant were not both actually present together at the time
+of the signing of the testatrix, was compelled to transfer the stock to
+_C_. _A_ was granted letters of administration _cum testamento annexo_
+(“administration with the will annexed,” which is the equivalent of
+probate where no executor is appointed by the will). In this way the
+matter ended. Had not the difficulty arisen of combating an attack on
+the point of the combined presence of the witnesses and the testatrix
+at the moment of signature, _A_ would no doubt have been left in
+tranquil possession of what was after all his rightful property. This
+apparently trifling detail compelling the presence of all three parties
+at the time of signature is of enormous importance. The greatest issue
+may hang upon it. The quality of witnesses is also not to be forgotten.
+No one who it is intended shall profit under a will should be used,
+for, though good as a witness, he or she is bad as a beneficiary.
+Then, again, a person with hostile motives can always quite easily go
+into court and swear that he or she was not actually in the room with
+the testator when the testator and the other witness attached their
+signatures. This was the suggested line in the case stated.
+
+A probate action of some passing interest, owing to the notorious
+criminal reputation of the testator, recently came before the Probate
+Court, Sir Samuel Evans, the President of the Probate, Divorce and
+Admiralty Division, sitting. The will of Crippen, the murderer, was in
+dispute. It appeared that shortly before suffering the death penalty,
+Crippen made a will, in which he left all of his property to the woman
+Le Neve, or Neave. Her counsel contended that, until the applicant
+representing the defunct Mrs. Crippen’s next-of-kin had conclusively
+proved by admissible evidence the fact of the wilful murder of the wife
+by the husband they could not oust the legal personal representative
+from obtaining probate. Mrs. Crippen’s sister was the applicant, and
+the application was grounded on the contention that Crippen was not
+entitled to any benefit arising out of his own felonious act. (It seems
+that the bulk of the property left by Crippen was personal property
+which had come to him from his wife at her death--incidentally, after
+he had murdered her.) Le Neve’s counsel argued that Crippen, as he had
+suffered the extreme penalty of the law, was no longer a felon.
+
+“The judge said that the court had, in special circumstances,
+discretion to pass over a legatee. Crippen had been convicted of the
+murder of his wife, the sentence of death was carried out, and there
+were special circumstances in the case. Therefore, he (the judge) would
+pass over the legatee of Dr. Crippen (Miss Le Neve), and grant letters
+of administration to the solicitor of the sister of Mrs. Crippen (Mrs.
+Theresa Hunn). Here the representative of a convicted felon claimed
+to be entitled to the estate--her only claim being one resulting from
+a felonious act. This was exactly as if Crippen himself had made the
+claim. It was clear that the law was that no person could obtain or
+enforce any rights resulting from his own crime; neither could his
+representative. The human mind revolted at the very idea that any other
+doctrine could be possible in the English system of jurisprudence.”
+
+The judgment is interesting. It would in truth seem somewhat anomalous
+for a man to be able to murder his wife, succeed to her property,
+be convicted of the murder, and then leave such property to his
+ex-mistress.
+
+There has not been a great deal to bring out in this chapter, chiefly
+because the points which have forced themselves upon the mind of the
+writer are in reality few in number, though important in their results.
+In drawing a will, it may be remembered, it is necessary to revoke all
+previous wills, codicils, etc. It is essential that the two witnesses
+and the testator should sign in each other’s presence.[12] It is also
+wise to bear in mind that marriage revokes a will and that the personal
+property (leaseholds, jewels, stocks, bonds, etc.) of an intestate wife
+goes to her husband absolutely. The drafting of a will is one of those
+things which could generally better be left to a reputable solicitor,
+though a testator may, if he avoids ambiguous directions, do the work
+for himself. The advantage in personally drawing a will lies in the
+certainty of secrecy, something which is not always to be found in a
+solicitor’s office. The witnesses should know that the document is a
+will, and they should be carefully chosen for their purpose. Where
+considerable property is at stake, it is frequently a great injustice
+to let it pass under the rules which apply to an intestacy. The
+anomalies of the law in this direction are more patent, perhaps, than
+they are in connection with wills.
+
+
+FOOTNOTES
+
+[11] It seems that it is not always absolutely necessary for the
+witnesses to sign in each other’s presence.
+
+[12] If not always essential, it is desirable.
+
+
+
+
+CHAPTER IV
+
+LIBEL AND SLANDER
+
+
+Little excuse is needed to touch on the law of libel and slander,
+owing to the constant flow of diverting cases brought in connection
+with this branch of legal activity. The King _v._ Mylius, arising out
+of a personal attack on King George; Howard de Walden _v._ Lewis,[13]
+an extraordinary instance of libel; De Forest _v._ Milner and De Forest
+_v._ Lady Gerard (two actions for slander) were among the notorious
+batch to be heard in the Royal Courts of Justice during Hilary Term,
+1911.
+
+There are many interesting points associated with libel and slander.
+Even the purely technical aspect of the subjects is often entertaining.
+Everyday life is full of slanders, perfect slanders too, many of
+them, but they are frequently, if not generally, of a non-actionable
+character, unless, of course, “special damage” protrudes itself into
+the situation in point.
+
+According to Mr. Hugh Fraser, an authority on the subject,[14] or
+subjects, libel and slander are definable in this way: “A defamatory
+statement is a statement concerning any person which exposes him to
+hatred, ridicule, or contempt, or which causes him to be shunned,
+or avoided, or which has a tendency to injure him in his office,
+profession or trade. Such a statement, if in writing, printing, or
+other permanent form, is a libel; if in spoken words or significant
+gestures, a slander.”
+
+“A statue, caricature, effigy, chalk marks on a wall, ‘signs or
+pictures, as by fixing up a gallows against a man’s door, or by
+painting him in a shameful or ignominious manner,’ may constitute a
+libel.”
+
+If a plaintiff alleges “that he is the person referred to as the
+villain in a book or story which purports to be a work of fiction,
+he must prove (_a_) that the author meant to refer to him, and (_b_)
+that the work was so written that those knowing the plaintiff would
+reasonably infer that he was intended.”
+
+To say of a barrister that he knows no law is actionable _per se_.[15]
+To impute incapacity to a journalist is also, it would seem, actionable
+_per se_. “In accordance with the common law principle that husband and
+wife are one person, ‘the uttering of a libel by a husband to his wife
+is no publication.’ ‘For many purposes they are,’ however, ‘essentially
+distinct and different persons, and, among others, for the purpose of
+having the honour and feelings of the husband assailed and injured by
+acts or communications made to the wife.’ Thus it has been held that
+sending a defamatory letter to a wife about her husband is sufficient
+publication.”
+
+No action for slander will lie, without proof of special damage,
+unless the words of the slander (1) charge the person slandered
+with a criminal offence, (2) or where they impute to him a venereal
+disease, (3) or where they are imputations against a man in his office,
+profession or trade, (4) or where they attribute unchastity or adultery
+to a woman. In all other cases of slander the plaintiff must prove
+a definite temporal loss. The loss may be the loss of a client or
+customer, or the loss or refusal of some appointment or employment.
+The loss of a gift, whether pecuniary or otherwise, may be actionable,
+or of gratuitous hospitality, “for a dinner at a friend’s expense is a
+thing of temporal value.”
+
+“Where the words are not _primâ facie_ defamatory, and where the
+plaintiff therefore intends to maintain that the words were defamatory
+by reason of their being understood in a special sense, he must be
+careful to insert in his statement of claim an averment specifying the
+defamatory meaning of the words complained of, and showing how they
+come to have that meaning, and how they relate to the plaintiff. Such
+an averment is called an _innuendo_.”
+
+“It is no defence that the defendant uttered the words complained
+of in jest, ‘for jests of this kind are not to be endured, and the
+injury to the reputation of the party grieved is no way lessened by the
+merriment of him who makes so light of it.’”
+
+“Slander, as such, is never a crime, though the words complained of
+may come within the criminal law as being blasphemous, seditious, or
+obscene, or as being a solicitation to commit a crime, or a contempt of
+court.”
+
+“For words to be seditious they must be published with intent ‘to
+bring into hatred or contempt or to excite disaffection against the
+person of his Majesty, his heirs or successors, or the government and
+constitution of the United Kingdom as by law established, or either
+House of Parliament, or the administration of justice, or to excite
+his Majesty’s subjects to attempt, otherwise than by lawful means, the
+alteration of any matter in Church or State by law established, or to
+raise discontent or disaffection amongst his Majesty’s subjects, or to
+promote feelings of ill-will and hostility between different classes of
+such subjects.’”
+
+The late Sir James Fitz-James Stephen has some interesting conclusions
+to draw as to what constitutes obscene matter in print. “A person,” he
+states, “is justified in publishing obscene books, papers, writings,
+prints, pictures, drawings, or other representations, if their
+publication is for the public good, as being necessary or advantageous
+to religion or morality, to the administration of justice, the pursuit
+of science, literature or art, or other objects of general interest;
+but the justification ceases if the publication is made in such a
+manner, to such an extent, or under such circumstances, as to excel
+what the public good requires in regard to the particular matter
+published.”
+
+In a criminal prosecution for libel, “it is not necessary, as in
+the case of a civil action, that there should be publication in the
+sense of a communication by the defendant of the words complained of
+to some third party--it is sufficient if the words complained of be
+communicated by the defendant to the prosecutor himself, provided that
+their natural tendency is to provoke the prosecutor and excite him to
+commit a breach of the peace.”
+
+It is interesting to note that in printed libels, _i.e._, in
+newspapers, books, etc., there is “a _primâ facie_ case of publication
+against the defendant where the manuscript from which the libel was
+printed is shown to be in his handwriting, there being no necessity to
+prove that he expressly ordered or authorized the printing.”
+
+The defendant was “held liable where the plaintiff told some friends
+an absurd story about himself, and the defendant published it in his
+newspaper, simply for the purpose of amusing his readers, and believing
+that the plaintiff would not object.”
+
+“The proprietors of a newspaper sued jointly with his negligent editor
+and the author of the libel cannot obtain compensation from either of
+them in respect of the damages which he has been obliged to pay to the
+plaintiff; nor will the fact that there has been an express promise
+to indemnify him if he will publish the libel in any may improve his
+position, for such a promise is void, the consideration for it being
+illegal. A printer cannot maintain an action for his charges for
+printing a libel; and if he agrees to print a book for a certain price,
+and finds in the course of his work that the book contains libellous
+matter, he may refuse to proceed, and can sue for that part of the work
+which is not libellous in an action for work and labour performed, and
+materials provided.”
+
+“Where the libel has appeared in a newspaper, difficulty is often met
+with in attempting to ascertain the author of the libel, for an editor
+will not, as a rule, give this information, nor is he bound to do so.
+‘When a man went to an editor to ask for the name of an anonymous
+correspondent, no blame attached to the editor for refusing to give the
+name. Indeed, an editor would be almost mad to do so. I should blame no
+editor for so refusing.’”--Baron Martin, cited in Fraser’s _Libel and
+Slander_.
+
+The majority of the foregoing paragraphs have been taken from Mr.
+Fraser’s work, and, though they are submitted in a somewhat fragmentary
+state, their interest is of a sufficiently general character, perhaps,
+to warrant their inclusion here.
+
+One of the most outrageous libels in recent years, was brought into
+court during the Hilary sittings, 1911, when, before the Lord Chief
+Justice and a special jury, Edward Frederick Mylius was criminally
+indicted for libelling his Majesty the King. The actual printing of
+the libel was carried out abroad, in the comparative safety offered
+by the French capital. Edward Hilton James was the person chiefly
+responsible for the offence. _Liberator_, a name one associates with
+Jabez Balfour, the assassination of a Russian Emperor and various other
+unsavoury events, was the title chosen for the organ in which the libel
+appeared. The _Liberator_ libel on the King was wholly unjustified
+from every conceivable standpoint. In the first place, had his Majesty
+chosen to go through forty ceremonies of the kind so falsely alleged,
+no one of them would have been legal, not even the first. The Royal
+Marriages Act, Geo. III.,[16] makes it illegal for any member of
+the Sovereign’s family to contract a binding marriage without first
+obtaining the consent of the Sovereign, or, failing that, without
+giving twelve months’ notice to the Privy Council. Marriage is a purely
+legal tie, and if it does not conform with the requirements of the law
+it must perforce fail. That is to say, there is no marriage where the
+law forbids it. Obviously, had his Majesty chosen to go through any
+ceremony of marriage without the sanction of the late Queen Victoria,
+or, without giving twelve months’ notice to the Privy Council, such
+ceremony would have been just as void as if it had never taken place.
+This is merely the way the law views the contingency. In actuality, the
+King never went through any form of marriage at all and the libel was a
+cruel and a wicked one.
+
+To be a popular or celebrated figure at the present day is to be the
+target for every form of foul abuse, criminal concoctions and cruel
+lies. Whether a person’s life is blameless or blameworthy, he only
+has to reach a certain degree of public attention to be douched with
+the vile outpourings of a cesspool, or blinded by the volcanic lava
+of jealousy and spite. The individual who yearns for fame had better
+first well calculate his power to endure its concomitants! To the
+monarch, born to it, there is no choice. He must go ahead as best he
+can, sickened with humanity, with his own troublous lot, almost envious
+of the stagnant peace of obscurity, with its mediocre associations and
+perpetual monotony.
+
+The hare-brained pseudo-revolutionary responsible for the gross
+writings in the Mylius case had the audacity to quote extracts from the
+American Declaration of Independence,[17] and other historic documents,
+to give the colour of respectability to his sewage rag. The present
+writer descends from officers who took part in the American War of
+Secession, the American War of 1812, and the American Civil War or the
+War of the Rebellion, but he can find no common ground between himself
+and the skulking anarchist who incited attacks on a harmless and worthy
+monarch, to wit, King George the Fifth.
+
+Mylius, the criminal indicted for the offence, affirmed the truth of
+the libel in court, notwithstanding the evidence to the contrary of
+witnesses of the best type. The marriage registers from Malta, where
+Mylius stated the marriage of the King had taken place, were produced,
+and, it is needless to say, no trace of any such marriage was to be
+found. The twelve months’ imprisonment to which the prisoner was
+sentenced was said by the judge to be insufficient. Indeed, it is an
+anomaly of the law that such an inadequate punishment should be the
+maximum assignable for the offence.[18]
+
+After the sentence had been pronounced, the Attorney-General made the
+following statement: “I hold in my hands at this moment a document,
+under the hand of his Majesty the King, from which, with your
+lordship’s permission, I will read. I am authorised by his Majesty to
+state publicly that he was never married, except to the Queen, and that
+he never went through any ceremony of marriage, except with the Queen.
+And, further, that his Majesty would have attended to give evidence
+to this effect had he not received advice from the Law Officers of
+the Crown that it would be unconstitutional for him to do so. That
+statement, my lord, is signed by the King himself.”
+
+The Mylius-James concoction was of a particularly vicious character.
+Had it been true, it would have left in the minds of ignorant people
+the impression that his Majesty’s children were the issue of a morally
+bigamous alliance. There is too much sedition-mongering already, to
+fill the minds of the benighted classes with fresh forms of doubt.
+Certainly, the King has enough to bear in the grave political unrest of
+the period, without being besmirched and libelled in his private life.
+
+As a last word on the subject of the King’s case, it is pleasing to
+note that no member of the London Bar appeared for the defence of the
+accused.
+
+There is at least one anomaly in the law of libel and slander which
+justifies the existence of this chapter. The publicity necessary to
+vindicate oneself under present conditions acts as a deterrent to
+many people in the prosecution of a libeller. The system of hearing
+cases _in camera_ would be better adapted to the feelings of libelled
+persons--those who hesitate to subject themselves to the bright blaze
+of newspaper details--than the existing open court trial. There is no
+reason why the scoundrel who libels a person should have the right to
+fling fresh insults and fictitious statements at his victim in the free
+atmosphere of a court of law--with the full knowledge that the case
+will be reported in the press. The greater the lie the greater the
+shrinking--from further publicity on the part of the victim. As matters
+stand, a man can be prosecuted criminally for a libel, or he can be
+sued for damages, or both. The form of a criminal prosecution most
+recommends itself to the thinking mind, for the actual punishment of
+the guilty must always be more satisfactory than the mere recovery of a
+sum of money.[19]
+
+Abuse, written or spoken, must not be confused with an actionable tort.
+One is comparatively safe in describing a man in writing as a “dirty
+scoundrel,” whereas it might be otherwise were one to allude to him as
+a “vicious thief.” Some sense of proportion and an exact knowledge of
+the use and meaning of words are useful possessions to the person of
+violent temperament!
+
+In Roman law, truth might be pleaded in justification of libel or
+slander, at least in those cases where the public was interested in the
+exposure. By the _Lex Cornelia_, it was made optional for the injured
+person to proceed against the offender either civilly or criminally.
+Truth is an answer to a civil action under the English law, but truth,
+coupled with evidence of public expediency, must be taken as essential
+in defence of criminal proceedings. Where, however, a man, actuated by
+good faith in the pursuit of his own interests, libels another man, he
+has a perfectly good defence. A certain individual who believed himself
+to have been defrauded by the machinations of another, in connection
+with a will, wrote to a third person for information. References were
+made to the alleged fraud in the letter, which was published in the
+press as part of the evidence at a coroner’s inquest. These facts come
+within the meaning of the immunity above referred to.
+
+It is possible, in this country, to libel the dead, _i.e._, where
+the libel is calculated to cause pain to surviving relatives or
+descendants. This is almost an anomaly, but it is a most proper one,
+nevertheless! The maxim, “_actio personalis moritur cum persona_,”
+applies, too, for no right of _action_ lies; the right to bring
+criminal proceedings, is that intended by the reference.
+
+
+FOOTNOTES
+
+[13] This libel action was based upon the posting by the defendant
+of two large boards (on his premises at the corner of Oxford Street
+and Holles Street) bearing respectively the words, “16 and 17, Holles
+Street, Lord Howard de Walden’s Monument of Iniquity,” and, “In
+the Holles Street Drama, the young Baron is discovered behind the
+curtain, pulling the wires for the imprisonment of his old tenant.”
+The defendant admitted that he had nothing against the plaintiff
+personally; he said that he wished to draw attention to his grievance
+against the managers of the Howard de Walden Estate. In the result,
+judgment was entered for the plaintiff.
+
+[14] Dr. W. Blake Odgers, K.C., is the author of the standard work on
+libel and slander.
+
+[15] An insult to counsel may be punished as a contempt.
+
+[16] See Appendix C.
+
+[17] It may be noted that five of the signatories of the Declaration
+of Independence were Middle Temple barristers: Thomas McKean,
+Edward Rutledge, Thomas Lynch, Thomas Heyward and Arthur Midleton.
+With the exception of the first-named, all of these gentlemen were
+Representatives of South Carolina. Thomas McKean, by the way, wrote
+the Constitution of Delaware in a night, while Edward Rutledge drafted
+the greater part of the Constitution of South Carolina. The latter was
+chairman of the Committee of Five who drafted the first Constitution of
+the United States.
+
+[18] “Edward Frederic Mylius is fortunate, living as he does in times
+when justice is tempered by extreme leniency. In former times the Kings
+of England had no lack of power in dealing with those who slandered
+Royalty. To cite only one instance, King Henry the First had been
+lampooned by a former friend, Luke de Barre, a troubadour knight. The
+unfortunate man was condemned to lose his eyes on the scaffold by the
+hands of the public executioner.
+
+“Many intercessions were made in his favour, but the King
+replied:--‘No, for this man, being a wit, a bard, and a minstrel
+forsooth, hath composed many ribald songs against me and sung them
+to raise the horse-laugh of mine enemies. Now it hath pleased God to
+deliver him into my hands, punished he shall be to deter others from
+the like petulance.’ It is not quite clear whether the sentence was
+carried out as arranged. Some chroniclers assert that De Barre’s eyes
+were in fact put out, and that he died of the torture, while others say
+that he cheated the executioner by dashing out his brains against the
+stone wall of his prison. In either case the incident shows that to
+libel Royalty in the twelfth century was a perilous venture.”
+
+[19] “Our legal system is apt to give wholly disproportionate
+importance to a large class of libel and slander actions intrinsically
+of small account. We provide first-rate machinery for the determination
+of second-rate or even trumpery questions; disputes not much above the
+level of those which a County Court judge settles once for all in a
+rough and ready manner in ten minutes or a quarter of an hour. It is
+true that there are libels of a cruel and malignant character, more
+mischievous than most crimes; calumnies industriously circulated as to
+the private lives of innocent men and women; fictions or distortions
+of facts for which no punishment is excessive. For such libels the
+criminal law is the proper remedy. But for a large mass of libels and
+slanders which engage the time of High Court judges and special juries
+the legal machinery provided, criminal or civil, is altogether out of
+proportion to their importance.”--_The Times._
+
+
+
+
+CHAPTER V
+
+IMPRISONMENT FOR DEBT
+
+
+Imprisonment for debt, laughable enough, perhaps, in an
+eighteenth-century comedy, is something of an anomaly in the existing
+state of justice. Some ten thousand persons annually go to prison for
+debt, or, rather, for contempt of court, arising in connection with the
+disobedience of an order of the court to pay a certain sum of money on
+a judgment.
+
+Of course, credit forms a large field for discussion. It is essential
+in all communities, among all classes of the population. How it comes
+into being and how it justifies its existence are questions of more
+than ordinary interest. In the first place, a man who lives at the rate
+of a thousand or two a year inevitably has credit given to him unasked.
+It is a part and parcel of daily life, convenient, if not necessary,
+in his case. Tradesmen are paid in the usual course of events and
+matters go tranquilly onwards. If, by mischance, the source of his
+income suddenly, unexpectedly even, comes to an end, how does he stand?
+He may owe two hundred pounds or two thousand. His credit has merely
+been the outcome of custom, usage, not of fraud, or of intention to
+defraud. Had his intentions been fraudulent, he would have “pushed”
+his credit far beyond the sum of two thousand pounds, which is merely
+an extravagant sum for a man with an income ranging from one to two
+thousand pounds _per annum_. But the two thousand pounds which he owes
+are, through his abrupt loss of income, a grave menace. If the sum is
+greatly divided up, his life may be made tormenting, for when a debtor
+is in difficulties, though they may have arisen through no fault of his
+own, it is the psychological moment for some creditors, most creditors,
+to deluge him with writs and summonses--a senseless system in the
+circumstances--and to pursue him with regiments of solicitors’ office
+boys, professional debt-collectors and officials from the county court.
+(The demeanour of these claimants generally savours of mixed brazenness
+and terror, amusing to the debtor if his _sang froid_ is equal to a
+little detachment! Carrion of the debt-collecting and process-serving
+species is very human in its appreciation of “tips.” Indulgence in
+pleasantry, too, goes a long way sometimes in gaining some petty
+privilege!)
+
+An instrument of the law known as the “specially endorsed writ”
+(for sums of £20 and upwards) is quite pestilential to the victim
+of credit. If the debtor happens to be in possession of a little
+money, it only adds to his expense to “enter an appearance”; it is
+usually better, therefore, to let the creditor “sign judgment” in due
+course. Solicitors still glory in these writs: where the debtor is
+likely to meet the obligation, an interesting little bill of costs
+for doing virtually nothing also stands a fair chance of being met
+without taxation. The costs are generally from three guineas to four
+pounds in the endorsement on the writ, and they are apt to tempt the
+person writted to send in a covering cheque for debt and costs, as
+marked. Service is often effected by the office boy, so that, with the
+exception of the stamp on the original writ, the expense is practically
+nothing. In other words, the solicitor earns his three guineas too
+easily, for there is a tendency not to tax such costs, which are unfair
+to a debtor who is not particularly pressed for money, who means to
+pay, and whose failure to do so has been due chiefly to oversight or
+neglect.
+
+We know that a debt of £50 is a basis for making a person bankrupt.
+Consequently, the debtor whose funds abruptly cease may have many
+trials to face with debts which only run to a few hundred pounds.
+Furthermore, suppose some trifling debt--for ten pounds or so--is
+pushed into a judgment in the county court. Later on it is matured by
+the machinations of a solicitor into an order of the court for the
+payment of so much a month. If the debtor is unable to meet the order
+he may be committed to prison for contempt of court--arising from
+disobedience to pay. Thus imprisonment for debt evolves itself.
+
+The abolition of imprisonment for debt has frequently been discussed.
+Many county court judges are against committals; some, of course,
+remain in favour of them. Judge Henry Tindal-Atkinson, County Court
+Circuit No. 58, was one of the witnesses to appear before the Select
+Committee on Debtors (Imprisonment), Sessions 1908 and 1909. In his
+evidence, the learned judge favoured the abolition of imprisonment,
+which he considered generally oppressive, and particularly hard on
+the working man, whom it placed rather at the mercy of the creditor.
+“Credit he thinks pernicious,” to quote from the report of the Select
+Committee, “and extravagant, from the necessarily high prices charged
+by tradesmen, uncertain that they may not have to wait years for
+their money. It is witness’s experience--which he illustrates by a
+comparison of committal orders in different districts on his own and
+other circuits--that extravagance increases in proportion to wages,
+the working man in good times spending every farthing and leaving no
+margin for present debts or future emergencies. Then in the case of
+process, fees further increase the debt, amounting perhaps to 8s. 6d.
+in a £2 claim. Witness favours abolition of imprisonment, and thinks it
+would diminish plaints. He does not think committed debtors necessarily
+dishonest.”
+
+In the same report, Judge Henry Mason Bompas, of County Court Circuit
+No. 11, expresses an opinion in conflict with Judge Atkinson’s.
+“Witness opposes the abolition of imprisonment as likely to check
+the credit required by the working classes, increasing its cost, and
+leading them (the working classes) to treat their obligations too
+lightly.... Witness is of opinion that imprisonment has not sufficient
+terrors. To the Burnley colliers his Honour’s seven-day sentences
+appeared so much in the light of a holiday above ground that he
+has been obliged to increase them. He instances a case of a man in
+employment doing his imprisonment by proxy, the unemployed substitute
+receiving five shillings in solatium of the seven days. The efficacy
+of imprisonment he deduces from the proportion of cases in which
+committal orders produce payment. Witness thinks credit desirable
+in certain cases, and that the question of tempting persons to it
+applies to all classes of society.... With regard to proof of means,
+witness says his practice is to accept arrangements between debtor
+and creditor as evidence upon which to make an order, subject to his
+knowledge of the creditor, as voluntary on the part of the debtor, who
+has the opportunity of attending court and making his own statements.
+In cases where no agreement is produced, evidence as to the man’s wages
+is obtained from the employer upon a printed form, if the debtor does
+not object. He alludes to the difficulty of ascertaining what a debtor
+may be paying into court upon other debts (whereby, in fact, his wages
+may not represent his income, in which case witness would regulate the
+order accordingly), unless he appears.... Witness opposes a suggestion
+that imprisonment be held to purge a debtor of the amount for which he
+was imprisoned.”
+
+Judge Edward Bray favours, in his evidence, the abolition of
+imprisonment. He opposes “the present system as prejudicial to the
+interests of the working classes on account of the enormous and
+expensive and indiscriminate credit which they can obtain.”
+
+Sir Kenelm Digby, G.C.B., at one time a County Court Judge on Circuit
+No. 19, favours the limitation of the power of imprisonment, but he
+considers its abolition impracticable as abolishing credit.
+
+Judge Cyril Dodd, Circuit No. 16, stated in his evidence that he
+desired the abolition of imprisonment for debt; he also recommended the
+widening of the present definition of crime.
+
+Judge John Gent, County Court Circuit No. 12, favoured, under certain
+conditions, the abolition of imprisonment for debt. “He would retain
+imprisonment for debt,” so the report goes, “in fiduciary cases and for
+default by a solicitor in payment of money when he has been ordered to
+pay the same, also for default in bankruptcy, taking other cases of
+fraudulent debt into the criminal courts. He reprobates the payment
+by results of registrars as putting an obstacle in the way of judges
+who conscientiously try to restrict the issue of committal orders,
+by placing them in an invidious position of responsibility for the
+reduction of the salaries of the registrar and his staff. He instanced
+his own feelings on finding that he had been the means of reducing the
+salary of the registrar at Huddersfield £200 or £300.... He thinks
+registrars favour the present system.... Witness disapproves of credit
+as vicious, and unnecessary, even in bad times, when the poor, he
+thinks, would be wiser to accept charitable assistance. He believes
+credit to be mainly given on the power of imprisonment in reserve....
+Witness thinks the requirements as to proof of means difficult to work
+and unsatisfactory, the Court of Appeal having decided that ‘means to
+pay’ are means to pay after the discharge by a debtor of his obligation
+of family maintenance.”
+
+Judge Henry Best Hans Hamilton, of Circuit 4, opposed, before the
+Select Committee, the abolition of imprisonment, “as likely to swell
+the numbers of improvident working men, and, by increasing the
+difficulties of obtaining the credit necessary in bad times, throw
+both the honourable and the improvident on the workhouse or parish at
+such seasons. He considers execution against goods (generally claimed
+by relatives or obtained on the hire system) useless against the
+improvident or dishonest.”
+
+Judge Arthur O’Connor, K.C., of County Court Circuit No. 2, “approves
+the power of imprisonment as a necessary instrument in securing payment
+of judgment debts which would otherwise remain unpaid.”
+
+Judge William Stevenson Owen (now deceased), Circuit 24, favoured the
+total abolition of imprisonment for debt, “save, perhaps, for damages
+for tort.”... Further, “He would make default in a fiduciary capacity,
+or by an attorney or solicitor, or default in payment for the benefit
+of creditors of any portion of a salary or income, criminal misconduct.”
+
+His Honour Judge Edward Abbott Parry, lately of Circuit 8, but now
+appointed to replace the late Judge Emden at Lambeth, stated, when
+giving his evidence before the Select Committee, that the present
+system was to be disapproved (1) as favouring disreputable trade,
+(2) as failing to punish dishonesty, (3) as a means of blackmailing
+friends and relations of the debtor, (4) as injurious to the poor, etc.
+He favoured the total abolition of imprisonment for debt, at least
+theoretically. He added that he believed in credit as a necessary evil.
+
+Judge Sir William Lucius Selfe opposed the total abolition of
+imprisonment for debt so far as the working classes were concerned.
+He made certain exceptions, however, in which he would abolish
+imprisonment, notably in cases arising out of money-lending
+transactions.
+
+Judge William Wightman Wood, of Circuit 20, another witness, favoured
+the abolition of imprisonment.
+
+Mr. S. Savill, Chief Clerk at Marlborough Street Police Court, in
+his evidence, divided debts recoverable before Courts of Summary
+Jurisdiction into three classes: “I. Sums recoverable similarly to
+civil debts summarily recoverable under the Summary Jurisdiction
+Act, 1879, _i.e._, cases in which the County Court has concurrent
+jurisdiction. In this class, a judgment summons necessitating proof
+of means must precede committal, and imprisonment is rare. II. Sums
+due under orders of the Court in cases of affiliation and maintenance
+orders and orders against persons legally liable for contributory
+maintenance of a child sent by the Court to a reformatory or industrial
+school. In this and in Class III. imprisonment is punitive, and purges
+the debt. III. Sums not recoverable under summary jurisdiction,
+comprising highway rates, poor rates, etc. Here stipendiary magistrates
+and ordinary justices have concurrent jurisdiction. Committals in
+this respect scarcely affect the poor classes, who live in houses and
+tenements for which the owners are, by consent of the local authority,
+rated up to £20, the power possessed by justices and stipendiary
+magistrates to discharge from payment any persons proving inability
+to pay from poverty not being used in the opinion of the witness to
+the extent intended by the Statute.”... Witness also suggested that
+imprisonment “as a screw” was abortive, and really only partially
+deterrent in its effect; he submitted, however, that if imprisonment
+for debt were abolished, strengthening of the punitive law would become
+necessary.
+
+M. Maxime de Gorostarzu, a French advocate, Counsel to the French
+Consulate-General, supplied the Select Committee with certain
+information on the French law. To take an extract from the report,
+“Witness states that imprisonment for debt in civil matters is not
+possible in France, debts for goods supplied being only recoverable
+by execution, nor does witness think its want is felt.” Imprisonment
+for debt was suppressed by the Revolution in 1793, re-established
+within the next two years, again suppressed in 1848, but re-established
+once more. In 1867 “it was finally restricted, in deference to public
+opinion.”
+
+Mr. John Arthur Barratt, a member of the English Bar and of the New
+York Bar, stated before the Select Committee that, generally speaking,
+imprisonment for debt on civil process was impossible in the United
+States, except in cases containing an element of tort or fraud. There
+are, however, States in the Union in which imprisonment for debt
+exists, notably in Massachusetts.
+
+Mr. Peter Morison, a solicitor practising in the Scottish Courts,
+stated, in his evidence, that imprisonment for debt was abolished
+in Scotland in 1880, except for taxes, fines or penalties, rates or
+assessment, sums decreed for aliment and _praestendum_ orders (_i.e._,
+orders by a judge to perform an act).
+
+Mr. Ernest Joseph Schuster, a member of the English Bar, and a Doctor
+of Laws of the University of Munich, explained that the rules as to
+imprisonment for debt on civil process were uniform throughout Germany.
+“Imprisonment for debt _per se_ does not exist, but, by provisions of
+the German law for dealing with mischiefs which might arise, debtors
+may, for the protection of their creditors, be imprisoned.”
+
+From the foregoing matter, which is derived for the most part from
+the report of the Select Committee (constantly referred to in this
+chapter), it will be seen that imprisonment for debt is by no means
+generally supported, either by the judges themselves or by those
+persons associated with judicial administration. Tradesmen of the
+inferior type support imprisonment with fearful anxiety lest it be
+abolished. To them, it makes a debt a lever for persecution. Indeed,
+it is used as a method of _quasi_-blackmail against the debtor of
+the lower classes. Take the unwary working-man in regular employ. He
+contracts a debt--he may even be persuaded into it--and the first
+thing he knows is its maturity into a county court judgment, followed
+by an order to pay (so much at stated intervals until the debt is
+liquidated). The man is informed that he will be sent to prison
+unless he finds the money. He is thus coerced and terrified by the
+debt-collector, until he suffers himself and those dependent upon him
+to go without food to meet the payments. The menaces used to bring this
+state about would not come within the meaning of blackmail, legally,
+but they savour so strongly of it in practice that “imprisonment for
+debt” becomes an injustice and an anomaly of the law. Imprisonment
+for whatever cause and for whatever time is imprisonment, and in the
+working-man’s mind lies the certainty that his employer, when the
+latter hears of it, will discharge him forthwith. The tangled terrors
+of his predicament are worked upon by the debt-collector, a person, we
+may assume, of even greater persistency than his prototype who pursues
+the debtor of the upper class.
+
+The Select Committee, though it did not actually recommend the
+abolition of imprisonment for debt, was only luke-warm in its
+endorsement of the measure. Many county court judges state definitely
+that they will not inflict the penalty, for that it is a penalty, and
+a very serious penalty, cannot be gainsaid. It would be absurd to
+suggest that all credit would fall apart in the event of the abolition
+of imprisonment for debt. Indeed, except among the “instalment-system”
+creditors who prey on the poorer classes, there is no reason to suppose
+that credit would be affected to a material extent by such a change.
+As a whole, imprisonment for debt can be labelled a legal fiction.
+It is imprisonment for debt, and yet, more strictly, perhaps, it is
+a committal for contempt of court. The terms in this respect are
+interchangeable. The root of the trouble is debt.
+
+“Under the (Roman) empire, every judgment required to be reduced to
+writing, and signed by the judge. It was entered in a register, and a
+copy was delivered to the parties. In the East, after Arcadius, the
+judgment might be drawn up in Greek, but the use of Latin was retained
+at Constantinople down to Justinian’s time.... After sentence, the
+debtor was allowed thirty days for the payment of the debt under
+the law of the Twelve Tables. At the expiration of that time he was
+assigned to the creditor by the prætor, and was kept in chains for
+sixty days, during which he was publicly exposed for three market-days,
+and the amount of the debt proclaimed; then, if no person released the
+prisoner by paying the debt, the creditor could sell him as a slave
+to foreigners. When there were several creditors, the letter of the
+law allowed them to cut the body of the debtor in pieces, and divide
+it among them in proportion to their debts; but some writers contend
+that the words _partes secanto_ are to be taken in a figurative sense,
+as referring to a division of the price when the debtor was sold as a
+slave.... The prætor allowed a delay of two months for payment of a
+judgment debt; and Justinian extended the period to four months, both
+to the defendant and his sureties, after which the debtor might be
+imprisoned, not in the house of the creditor, as in early times, but in
+a public prison.”[20]
+
+One can scarcely leave a chapter on civil--as opposed to criminal
+[law]--coercion, without some mention of the writ of _ne exeat regno_.
+It has, perhaps, a certain distant relationship to “imprisonment for
+debt:” “It sometimes happens (for instance, where a plaintiff is unable
+to establish his case except upon the admissions of his adversary)
+that a defendant may, by leaving the country and so putting himself
+beyond the jurisdiction of the English Courts, seriously prejudice or
+perhaps altogether defeat a just claim. To prevent such a miscarriage
+of justice, suitors in the High Court of Chancery could for many years
+before the coming into operation of the Supreme Court of Judicature
+Act, 1873, apply for and in a proper case obtain a writ of _ne exeat
+regno_, addressed to the Sheriff of the county where the party named
+therein was supposed to be residing, and commanding him to cause such
+party to come before him and give sufficient bail in the sum endorsed
+on the writ, that he would not go or attempt to go into parts beyond
+the seas without leave of the Court, and on his refusal or neglect to
+comply with this demand to commit him to prison.... This writ, which
+issued only out of the Court of Chancery or the Court of Exchequer
+on its equity side, so long as it had an equitable jurisdiction, was
+originally a high prerogative writ by which the Crown was enabled
+to prevent any of its subjects from leaving the country when their
+services were required in it. The writ was subsequently applied to
+cases between subjects, and the principles which guided the Court in
+directing or refusing its issue, became by degrees clearly defined,
+so that Lord Eldon, L.C., said: ‘This Court, if not bound _ex debito
+justitiae_ (and I do not say it is so bound), is bound in the exercise
+of a sound discretion to grant the writ, if the case be a case in which
+the writ ought to be granted.’... Again, ‘if the Court, having granted
+time for payment of money, is satisfied before the time arrives that
+the party is going abroad to prevent payment of the money, it will
+undoubtedly interpose.’... Under the present practice, in order to
+obtain the writ, the applicant must show (1) that the circumstances are
+such that the Court of Chancery would have granted the writ, and (2)
+that the case is one which falls within sect. 6 of the Debtors’ Act,
+1869.”[21]
+
+Imprisonment for debt is nearly as old as the hills--under the Roman
+_régime_, as will be seen, it literally flourished--but it is not
+wanted in this country at this time and by a fictitious process, too,
+which is regarded with disfavour by many of the judges empowered to
+employ it.
+
+
+FOOTNOTES
+
+[20] Lord Mackenzie.
+
+[21] _Oswald on Contempt, Committal and Attachment._
+
+
+
+
+CHAPTER VI
+
+THE NEED FOR THE RIGHT OF PROPERTY IN SURNAMES
+
+
+A very anomalous side of the law is to be found in connection with
+the use of surnames: their variation, their complete change, etc. John
+Smith may freely call himself John Montmorency or John Plantagenet,
+or any other name in keeping with his fancy. He may even go a step
+further, and call himself Baron Montmorency or Viscount, or Count, or
+Marquis or Duke, or whatever else he likes. So long as the name and
+title do not cause persons to give him credit which they would not
+give him as John Smith, he is comparatively immune from the meshes of
+the law. The whole question therefore evolves itself into a simple
+issue--_i.e._, is the assumption of the title or surname with a view to
+imposing on people, and does it in fact so impose upon them that they
+are led to part with goods or money on the strength of the success of
+the imposition?[22]
+
+Many Jews and other aliens on becoming established in this country
+drop their patronymics, which may end with a “stein” a “berg” or a
+“ski” and call themselves instead, “Gordon,” or “Howard” or something
+else equally reassuring. That such a loose state of affairs should be
+permitted is an indirect incitement to fraud. Admittedly, “Cohen” or
+“Solomon” is not, perhaps, an incentive, _primâ facie_, to business
+relations, whereas “Harris” or “Langton” may be.
+
+It is utterly iniquitous the way the family names of British peers
+have been seized upon by the sons of Israel. One finds some of the
+greatest names in the history of the country applied to the offspring
+of Whitechapel. Some legal check is needed to prevent this, even where
+no direct intention exists to commit a punishable fraud by means of the
+fiction. It is not suggested that those Jews who have reached power in
+England use their adopted appellations to carry on swindles. But it is
+improper that they should prosper under the great name of some English
+or Scottish ducal house, when they have never perhaps even so much
+as lent money to its members in the junior line! Several peculiarly
+flagrant instances of the kind suggest themselves to the mind. Great
+dignity has sometimes been bestowed on the scions of a Hebrew house
+whose adopted name has clashed unpleasantly with the noble name of
+an historic family. Why a name like “Sowinski” should be replaced by
+“Cavendish” one fails to see, particularly as a name carries with it
+definable or indefinable, conscious or unconscious, associations, which
+weigh.[23]
+
+The offspring of the original “Sowinski” becomes “Charles,” or
+“Edward,” or “George”--“George Cavendish.” Obviously, such a person
+has reached a financial status far above interest in trivial fraud,
+though his name is a constant fraud of sorts on some one, particularly
+if he remains only a name--_invisible_! To descend to the lower
+branches of struggle for gain by imposture, we find “Claude Churchill”
+lending money, practically without interest, “Edwin Graham” giving
+bank notes away on mere notes of hand, and “Hubert Douglas” most eager
+to cash post-dated cheques, literally for nothing! It is incredible!
+How a “Lazarus” can become a “Scott,” an “Aarons” an “Ogilvie,” and
+a “Niemann” or a “Katz” a “Murray,” is far beyond reasonable process
+of deduction! It is a gross anomaly of the law that it should be
+tolerated. A High Court judge recently drew a limited parallel--the
+assumption of noble names by money-lenders. “What’s in a name?” may
+be asked by the illiterate or semi-illiterate man, and yet he is
+as promptly influenced by it as persons to whom a name admittedly
+suggests something tangible. In the case of “John Smith,” we have
+a name which is not distinctive, which, indeed, must be confusing
+and burdensome to its possessor. He may have a much larger banking
+account than an individual of distinguished name and lineage, and,
+if so, he is perfectly justified in using it to change his name to
+“Boggs,” or “Hoggs,” or “Noggs” or whatever other name exists in his
+maternal line. However lowly his origin, he should be compelled to
+choose a name associated with his parentage. He should not be allowed
+the option of assuming a high-sounding name to which he can lay no
+claim. His choice should be limited to the names of his ascendants.
+In this way, there would be some semblance of actual justification
+for discarding a commonplace patronymic. The candidate for change of
+name could effect his purpose by deed poll, an easy task involving
+no proof of pedigree or gentle birth. Affidavit should, however, be
+made that the name chosen, on the plan here suggested, was the name
+of such and such an ascendant of the person making the change. This
+would be an effort on the part of the law to reduce the system to order
+and method. In the case of Russians, Poles, aliens of suggestive and
+hideous surname, whatever change of name allowed to them, such change
+should conform with their foreign origin. Provision for the infliction
+of penalties for disobedience in this connection would help matters in
+the right direction. The whole question may seem trivial, but from the
+ramifications which spread out from the use of an _alias_ or fictitious
+surname, much deception, or fraud, or improper profit almost amounting
+to fraud, frequently, if not generally, results. This is stating the
+case in a very mild way.
+
+Establishing the identity of an alien in this country should also
+be made easier by compelling every such person to produce documentary
+evidence of his (or her) identity on landing, and to make such person
+subject to interrogation or examination on the point at any subsequent
+time. This is a side-issue; still, it is linked to the main question
+here raised, namely, the chaotic laxity permitted, or, at any rate,
+not prevented, with regard to the change of a person’s name. The
+method of the deed poll, as at present applied, though preferable
+to the impromptu nomenclature adopted by the criminal classes, is
+certainly not above reproach. It allows too much license in the
+choice of a name. Change of surname should, as already pointed out,
+be restricted to cases where the claim to the new name is at least
+colourable, _i.e._, permissible only where the name desired is the name
+of an ascendant.[24] If some of these suggestions were carried out,
+there would be no more mad hunts for practically anonymous criminals
+like “Peter the Painter” and “Fritz,” the suspected murderers in the
+notorious Hounsditch fiasco. The wonder is that no one has apparently
+yet seized upon the feeble system or absence of system in checking the
+rightful names of the inhabitants of these islands. Legislation for
+the punishment of persons making an improper use of surnames would be
+distinctly useful. There would be fewer Polish “Harrises” and Russian
+“Montagues” or, indeed, “Montagus” (less the “e,” for in some cases
+this further audacity has been exhibited), in England than there are
+to-day. Even the descendants of these august impostors would tremble in
+their boots! “Solomon” or “Aaronstein” or “Samuel” would also become
+their appearance better in many cases! These remarks, though they
+obviously refer to Jews, are not intended to offend respectable Jews
+who courageously adhere to the ugly names of their ancestors. The Jew
+who says he is a Jew and passes under a name properly associated with
+the Jewish race calls for no rebuke, nor, indeed, for anything, very
+often, except genuine admiration. It is the impostor, great and little,
+criminal or merely falsely ambitious, who attracts hostile attention,
+with some substantial justification, be it confessed.
+
+With regard to the small fry of the improper hyphen, there is nothing
+to be said. Thousands of persons use hyphens who, if they had any sense
+of proportion or self-respect, would hastily discard such a laughably
+inconsistent sham. Unless a hyphen expresses the legal joining of
+two surnames, thus bringing together the pedigrees of two houses, it
+conveys nothing but _bourgeois_ affectation and impudence. It is a
+feeble fraud at best, scarcely worth condemning. Different causes bring
+about the legal use of the hyphen. Sometimes, a rich father-in-law
+without heirs male directs by his will that his daughter’s husband
+shall, by Royal License, assume the additional surname, whatever it may
+be, which becomes extinct at his (the father-in-law’s) death, before
+or after his (the son-in-law’s) own name. In this way the hyphen comes
+into being, and the name which would have perished is duly kept alive.
+At other times, the additional surname of an ancestor, where that
+ancestor bore a distinguished name, in the maternal line, is revived
+by process of law on the voluntary initiative of the person desirous
+of possessing the name. Thus, a person representing in his blood an
+historic family through, for example, his father’s mother, may by Royal
+License assume his grandmother’s maiden name, the more justifiably
+if she was in the nature of an heiress or co-heiress of the house.
+The name, of course, may be joined to the existing surname, before or
+after, with a hyphen, or it may be taken alone in substitution for the
+existing surname.
+
+Reference has been made to the freedom with which a man may call
+himself by any name, without legal formality, and to the equal freedom
+with which an alien may discard his own name and by deed poll assume
+the honoured name of a great English house. (Alas, the Royal Licence
+has been used in at least one glaring instance, too!) It has also been
+made obvious that such practices should be checked by definite legal
+means.[25]
+
+The countries where conscription is customary are well protected
+against change of name abuses. Conscription would solve the difficulty
+here; but there are ways and means of putting down a most iniquitous
+practice, a criminal practice in its intent, more often than not, by
+ordinary legislation. Actors and actresses could be exempted because
+they do not appear to offend in the sense that the impostors condemned
+in the foregoing remarks offend.
+
+It so happens that a further judicial allusion, as to the wrongful
+assumption of great names, has been made, and duly reported in the
+press. “As usual on Saturday,” says the report, “a number of short
+cause actions, generally of a money-lending character, came on for
+hearing, in Mr. Justice Darling’s Court in the King’s Bench Division
+yesterday. One of them involved considerable argument upon a point of
+law with reference to the passing, by a bank, of a cheque, which, it
+was alleged, had been altered by the addition of the word, ‘Limited,’
+to the plaintiff company.
+
+“Counsel: ‘But at the time the cheque was drawn the plaintiffs were
+not a limited company, and the title therefore was not their real
+title.’
+
+“‘Oh,’ commented Mr. Justice Darling, ‘such a thing does not surprise
+me. I sit here on Saturday and hear all sorts of persons called
+Fortescue, Plantagenet, Egerton, and so on, but those are never their
+real names. You must not think that on Saturdays I expect people to
+give their real names here, because I don’t!’
+
+“His lordship was obviously referring to certain money-lenders whose
+registered trade name, as distinct from the name of their parents, has
+already given rise to judicial comment.
+
+“The decision eventually went in favour of the defendants, who had paid
+the cheque to one of the plaintiffs.
+
+“There was considerable disturbance in the passage of the court when
+another case was called, some litigants leaving the court, and others
+hastening to the vacant seats.
+
+“A witness named Fitz-Clarence was called in another case.
+
+“‘Quite a Saturday name,’ observed counsel.
+
+“‘All the Burkes and Debretts come here on Saturday,’ replied his
+lordship, amid laughter.”[26]
+
+Casual mention has been made of actors. Of those well-known, Henry
+Irving was born Brodribb; Herbert Tree, Beerbohm; while George
+Alexander’s surname was Samson. In no one of these instances was a
+great family name improperly assumed, and it stands to the credit
+of these theatrical leaders that such is in fact the case. There
+are several persons on the English stage who are perfectly entitled
+to describe themselves by well-known names. Lord Rosslyn, Lord
+Yarmouth, Lord Dangan, Lady Constance Richardson, and the Hon. Helen
+Douglas-Scott-Montagu, are among the number. Mr. Adolphus Yane-Tempest,
+also distinguished in the theatrical world, is a Londonderry, while Mr.
+Cosmo Gordon-Lennox, one of the Richmonds, is another actor entitled to
+a distinguished name.
+
+Constant use of a name is said to impart some element of right to
+the name so used, but unless the deed poll is brought into operation,
+one might reasonably suppose the name in question to be subject to
+attack as an _alias_. Writers are given to the assumption of the
+_nom de plume_. Beaumarchais, the hardy author of _Le Barbier de
+Seville_ and _Le Mariage de Figaro_, was originally Caron by name,
+but there is reason to believe that he became “De Beaumarchais”
+by legal process. Some people even suggest that “Shakespeare” was
+an _alias_ for Bacon! Many instances have occurred where writers,
+distinguished and otherwise, have adorned their work with fictitious
+names. Modern examples pass through one’s mind in dozens, but the
+persons forming them have not gone to the extremity of using their
+_noms de guerre_ in private life. Sometimes two people, prominent
+in different spheres, bear the same combination of names, where the
+names are not particularly commonplace. There is a novelist, of some
+reputation in America, who like the present Home Secretary, is known as
+Winston Churchill. As the Home Secretary’s “Winston” is derived from an
+ancestress who married into the house of Marlborough, it is difficult,
+without guidance, to see how the American novelist derived _his_
+“Winston,” for “Winston” is said to be his name.
+
+Juggling with names should be made a punishable deception. There are
+exceptional circumstances, already roughly outlined, which warrant the
+legitimate assumption of a name, justly celebrated, perhaps, where
+it is represented in the blood.[27] Cases of the kind do not come at
+all within the intention of these remarks, which are directed against
+foolish or fraudulent persons who have no colourable right to the
+names they assume. These offenders should be properly labelled by the
+law, and not by the vagaries of aspiring imaginations or criminal
+subterfuges.
+
+
+FOOTNOTES
+
+[22] “Application was made at Clerkenwell, to-day, for process against
+a man calling himself ‘Viscount Mackenzie,’ for deserting his wife
+and for obtaining credit by false pretences from his landlady, Mdme.
+Gabrielle Suffolk, of Ampthill Square, St. Pancras.
+
+“It was stated that the man had represented himself to be ‘Viscount
+Mackenzie, of Mackenzie, in Ross-shire, Duke of St. Omars (a
+surgeon-general in H.M. Army).’
+
+“Mr. Bros heard the wife first.
+
+“‘Viscountess Mackenzie,’ as the landlady called her, said she was
+married to the man on January 7th, and he left her ‘four weeks to-day.’
+
+“_Mr. Bros_: ‘Do you know his address?’--‘No, sir.’
+
+“_Mr. Bros_: ‘Then I’m afraid I cannot help you.’
+
+“The magistrate then called the landlady.
+
+“She said she knew the man as ‘Viscount Mackenzie,’ and the wife as
+‘the Duchess.’
+
+“_Mr. Bros_: ‘You didn’t believe that, did you?’
+
+“_The landlady_: ‘He said he was a surgeon-general in H.M. Army, and
+would get his pension at the end of the month.’
+
+“It was stated that the ‘Viscount’ had left his will behind him, and
+the magistrate remarked that that did not help him.
+
+“This will was produced in court the previous afternoon, when the wife
+summoned the landlady for detaining her property, and stated that her
+noble husband had induced her to part with all her money. The will gave
+and bequeathed to ‘the Viscountess’ £6,000 a year for life and ‘all the
+family plate.’
+
+“On the sworn evidence of the landlady, a warrant was
+granted.”--_Evening newspaper._
+
+[23] “Noblemen, and their children, carry about with them, in their
+very titles, a sufficient notification of their rank. Nay, their very
+names (and this applies also to the children of many untitled houses)
+are often, to the English ear, adequate exponents of high birth, or
+descent. Sackville, Manners, Fitzroy, Paulet, Cavendish, and scores
+of others, tell their own tale.... Such persons, therefore, find
+everywhere a due sense of their claims already established, except
+among those who are ignorant of the world, by virtue of their own
+obscurity.”--De Quincey, _Confessions of an Opium-Eater_.
+
+[24] Or where the change is to be effected by Royal License, when the
+assumption of the name and arms might be prevented.
+
+[25] A solicitor on the Rolls cannot change his name except by
+the leave of the Master of the Rolls, who requires either a Royal
+License or a deed poll enrolled plus advertisements. (A note by Mr.
+Cozens-Hardy, the well-known barrister, who is, of course, the son of
+the Master of the Rolls, the Right Hon. Sir Herbert Cozens-Hardy.)
+
+[26] Sunday newspaper.
+
+[27] Mr. Samuel Beach Chester is the only child of the eldest
+(married) son, the late Captain Paul Townsend Jones, Jones’ Independent
+Battery, Pennsylvania Artillery, of the late Rev. Samuel Beach Jones,
+D.D., of Bridgeton, New Jersey, a trustee of Princeton University, and
+a graduate of Princeton and Yale, who married the eldest child (all
+daughters) of the Rev. John Chester, head of the Wethersfield branch of
+the Chesters of Blaby in Leicestershire. The Chesters of Wethersfield
+stood at the head of affairs in Connecticut in the 17th, 18th, and
+(early part of the) 19th centuries. By order of the New York Supreme
+Court, 1901, Mr. Chester assumed the maiden name of his grandmother,
+Sarah Ralston Chester. Mr. William Chester represents the junior male
+line and Mr. Beach Chester the senior female line, genealogically, at
+the present time. The Chesters of Wethersfield, Connecticut, are not
+related to any other family of the same name established in Connecticut
+or elsewhere in the United States.
+
+
+
+
+CHAPTER VII
+
+LITERARY CENSORSHIP
+
+
+There seems to be some need for the revision of the law applied
+to literary productions. The subject is a peculiarly important one
+to writers, printers and publishers, and, to a lesser extent, to
+the public at large. When a publisher undertakes the publication
+of a novel, for example, he involves himself in a liability for a
+considerable sum for its production. The unknown writer may, by a
+certain contributory process, bear a part of the burden borne by the
+publisher. Only the writer with a name of one sort or another, or with
+a certain circulation, can reach the stage which confers the advantage
+of publication for reward. The publisher has his difficulties to
+face in securing the services of a writer of this class, and, when
+these difficulties have been overcome, he has the financial burden of
+production to confront. This burden is in itself reasonably heavy,
+with the result that he has to be most careful to avoid publishing any
+matter, which may be condemned by the authorities as “indecent.” There
+is something to be said as to what constitutes indecency, of course,
+and this very uncertainty makes the publisher’s _métier_ the more
+trying. It is more than trying; it is unfair.
+
+The translated works of Marcel Prévost, a writer of genius, a member
+of the Acadèmie Française, have been suppressed time and time again.
+Théophile Gautier, Émile Zola, Guy de Maupassant, Gustave Flaubert,
+and many other writers of the first water, have had the English
+translations of their works suppressed. Admittedly, the freedom with
+which sexual relations are dealt with by these writers has sometimes
+been construed into indecency in this country. Certainly, the
+translations, or many of them, are inferior in workmanship, and lend
+themselves to condemnation by their very crudity. However this may be,
+it is perfectly obvious that the legal method of dealing with indecent
+or questionable literature is thoroughly inadequate, uncertain in its
+effect, and needful of drastic improvement. That is to say, primarily,
+a definite protection and security should be provided for the publisher
+against loss arising out of the suppression of his publication. It may
+be said, with partial propriety, that the best way for a publisher
+to protect himself is not to publish _risqué_ works. But it must be
+remembered that a publisher is not necessarily an expert on what
+actually constitutes legal indecency, nor are his readers or advisers.
+
+To be able to judge with some exactitude the decency or indecency of
+sexual problem novels requires both legal and literary skill It is not
+always so, naturally, though a certain number of works of literary
+merit demand a high sense of discrimination in deciding their moral
+limits. It is not precisely the immorality of a book which settles the
+question: it is rather its treatment. There are many gross novels,
+written by persons of inferior education. No doubt can exist as to
+their indecency. But the publisher, perhaps, who undertakes their
+publication, is merely careless in his methods. It is his duty,
+indubitably, to take reasonable precaution; having failed to do so,
+his position is a bad one. He may be prosecuted, committed for trial,
+and imprisoned or fined, along with the printer. He also has to bear
+the loss of production, a consideration in itself, as stated. His
+“suppressed” novels become unsaleable at once.
+
+A recent case at Bow Street Police Court was in a sense interesting
+from the legal standpoint respecting indecent books. A prosecution was
+started against the wholesale distributors of certain objectionable
+novels, the work of an anonymous writer. The identity of the publisher
+was not disclosed on the title pages of the books, nor did the
+printer’s imprint appear. The distributors, therefore, stood _in loco
+parentis_. They were mulcted in fines and costs to the extent of about
+£400. The novels seized were ordered to be destroyed, as a matter of
+course.
+
+The technical basis for fines on such a scale was the absence of the
+printer’s imprint--a legal necessity. The penalties attaching to an
+infringement of the law on this subject make it worth the while of
+every person responsible for the production of a book to preclude the
+possibility of an oversight. Certainly, it may be assumed that the mind
+of the magistrate was (in deciding the case above referred to) largely
+influenced by the gross character of the books. Nevertheless, the
+printer’s imprint should always appear.
+
+By an anomaly of the law, a writer is not liable for the indecent
+contents of his (in the recent case at Bow Street, “her”) books. That
+is to say, so long as they do not constitute a libel upon someone. The
+brunt of the trouble falls upon the printer and the publisher, more
+particularly, in practice, upon the publisher.
+
+One point which must strike the mind of any person interested in the
+examination of books for publication is the very proper hostility of
+the magistracy towards books, however excellent in literary quality,
+which touch upon unnatural offences. In a novel of some merit--“_The
+Hazard of the Die_”--a veiled suggestion, very veiled, it seemed,
+of an unnatural association, ran through a portion of the book. It
+was suppressed by the authorities, though it bore the imprint of a
+respectable publisher.
+
+Writers are at present hampered and restricted in the treatment of
+ordinary sexual relations by many of the more important subscription
+libraries. A writer has to consider his publisher, and the publisher
+has to give some thought to his market. What has sometimes been
+described as “the library ban” curtails the field of description to a
+greater extent than the public authorities.
+
+Whether or not all these bulwarks improve or protect the morals of the
+kingdom is a moot question. To the ruthless mind, they seem to savour
+of excess. Why any one body of persons, of no particular qualification,
+should decide what is good and what is harmful for another superior
+order to read is fantastic and even stupid to a degree. This
+_quasi_-censorship may be beneficial in theoretically protecting the
+young and innocent mind from coming into too early contact with pages
+from life, but it is hardly considerate of those maturer readers
+who may be anxious to be drawn from their own _ennuis_ by the light
+treatment of other people’s. The suppression of all printed matter
+relating to sexual difficulties, from divorce reports to novels and
+plays, from classics to social memoirs, might tend perhaps to check an
+increase of knowledge in the very young, though as long as we are human
+beings and not metallic automata it may be presumed with some safety
+that sexual relations will scarcely become extinct! Why the adolescent
+mind should have to be rescued from a problematic contact with certain
+printed matter, when, _per se_, proper upbringing should turn it
+against depravity, one almost fails to see.
+
+Of course, questions of morality and immorality have their degrees.
+For instance, the most ardent supporters of freedom in connection with
+literary works would not be able to give countenance to such gross
+indecency as that exhibited in John Cleland’s notorious book. There are
+similar publications, secretly distributed at the present day, which
+would revolt the most worldly libertine.
+
+Indeed, the dissemination of descriptive debauch should not stand
+on a legal par with the publication and distribution of ordinarily
+indecent books, such productions, for instance, as those named in the
+recent Bow Street case. With regard to these latter publications, all
+of which, in their original state, were examined and condemned by
+the present writer, prior to the police prosecution, crudity of tone
+and workmanship were as conspicuous as defective decency. The novel
+translated from the French of Marcel Prévost was almost as careless
+and rough in its finish as the English novels which fell under the
+destruction order at the same time. Though all of these publications
+were in places definitely indecent, unquestionably so, they did not
+approximate the filth which finds a more secret means of distribution.
+
+Undeniably, it is extremely difficult as a rule to obtain information
+which will reasonably lead to a conviction. Much the same may be said
+in connection with the sale of indecent photographs, “pictures,” etc.
+This disgusting traffic appears to exist, if it does not actually
+thrive. An alien, one of those aliens clothed in the name of “Harris,”
+as it happened, received a sentence of three months’ imprisonment, to
+be followed by deportation, from the Common Serjeant in February, 1911,
+for selling indecent photographs. Cases of the sort arise from time to
+time, but it may be assumed that the majority of the offenders escape
+scot free, for the simple reason that they do not get “found out.” The
+topic is not sufficiently interesting or important to warrant further
+notice.
+
+What actually concerns writers, publishers and the public at the
+present time is the betterment of the system of freely circulating all
+books. This may be taken to refer, not to the “library ban,” which is
+influential only from the financial standpoint, but to the application
+of the law controlling questionable literature.
+
+The police authorities scarcely indulge in wild hunts for the ghosts
+and goblins of indecency until their attention has been very definitely
+drawn to the existence of a likely field. That is to say, complaints
+come in, and in certain cases they are gone into, with the result that
+a prosecution ultimately follows. There are, perhaps, plenty of people
+who spend their time in searching for indecent paragraphs in trumpery
+novels. It is on their initiative that the police are compelled to
+have the works complained of examined, and, if the same are found
+to be strong enough to support a prosecution, a prosecution is the
+result. Now the whole machinery associated with such a prosecution is
+cumbersome, variable and unsatisfactory. The most choice work of genius
+may fall under the same axe as the literary outpourings of a woman
+better adapted to the _métier_ of a _cuisinière_. It is the difference
+in quality and the similarity in fate which demand criticism. The
+police defence would be that there exists in the works of both types
+the common fault of indecency. (The word “police” is used for want of
+a better descriptive title for the persons actually engaged in the
+examination of questioned publications.) That may be true enough.
+Suppose, however, that a worldly magistrate chooses to discriminate,
+suppose also that he is fortunate in having some tangible ground for
+doing so, the decision of the case must tend towards the support of the
+able writer and the condemnation of the material produced by the writer
+whose _raison d’être_ is base.
+
+Setting aside all question of literary values, there is one notorious
+novel which seems to be as indecent in some places as the novel
+“According to St. Paul.” The former--it must be left nameless here--was
+sold openly for several years in London, and, so far as one knows, is
+still sold openly. The latter, in its original form, at any rate, was
+extinguished twice over at Bow Street. Now the distinction between
+the two novels lies almost wholly in the quality of the writing. If
+this question of quality were to rigidly decide the result of every
+prosecution, there would be no need to say any more. But it forms
+an untrustworthy precedent, battered down in dozens of other cases.
+Consequently, the pursuivant of letters is left confronted by doubt
+and uncertainty. If he be endowed with skill, he is forced to use such
+skill in evading much which may be artistic and human in its import.
+He must treat his subject with great circumspection, hamper himself
+at every point, and leave his best efforts untried. For, after all,
+“best efforts” in the writing of novels are often those produced by
+the treatment of passion, not necessarily indelicately. Passion is,
+however, a pitfall to the English or American novelist.
+
+A writer who knows “things” has a better chance of escaping difficulty
+than one who flounders into print on a meagre social knowledge. This is
+the utmost that can be said, and it is not satisfactory either to the
+writers themselves, or to the publishers. In short, what really seems
+to be needed is a system of censorship. It would protect publishers
+and printers, and save writers some anxiety. It should, perhaps, take
+the form of a small department, non-political in character, with a
+staff of qualified persons, whose duty it would be to read and “pass”
+or “reject,” subject to alteration, all manuscripts submitted by
+publishers.
+
+The censorship should not be constituted for the purpose of greatly
+restricting freedom of expression, but, rather, only to check gross
+license, with impartiality. Dramatic works might be dealt with by the
+same authority as novels, memoirs, and other classes of literature.
+Unless the whole scheme of a novel were to run on some revolting moral
+question, it should not be condemned by the censorial authority, but
+only those portions of it, individual words, lines, paragraphs, or
+pages, impartially judged to offend. Once the work submitted had been
+passed, subject to the deletion or alteration of condemned passages,
+the possibility of a later questioning should be denied. In this way,
+the irresponsible fanatic, who now acts as a police irritant or goad,
+would have to turn his attention to other spheres of activity. The
+existence of the censorship would therefore perform several services.
+It would supply publishers and printers alike with definite knowledge
+as to their immunity from legal attack. It would serve the purpose of
+a barrier between the public and the publisher of obscene or indecent
+or blasphemous prints. It would supply a certain sense of security to
+the writer, whose copyright royalties are, under present circumstances,
+frequently in danger. It would also relieve the magistracy and the
+police from a comparatively trivial, though time-filling branch of
+work. Some utility of purpose would also be fulfilled where plays are
+concerned.
+
+A great deal of gratuitous newspaper advertisement recently attached
+to the writer of a play, which was refused the license of public
+performance by the Lord Chamberlain. The whole disturbance was idle
+enough in its effect, though it helped to recall the existence of the
+Examiner of Plays--a person deputed by the Chamberlain to carry out the
+work of censorship in practice. Political reasons were said to have
+actuated the refusal of a license to produce the play. Such reasons
+could also be made the basis for similar refusals (in connection
+with dramatic productions, at any rate) on the part of the censorial
+authority here advocated.
+
+A censorship would free from the shackles of doubt and uncertainty all
+those persons who contribute to the production of a book. An author
+would know that at worst his writing was liable to expurgation. In
+practice, this could even be carried out by the author himself, in
+accordance with the directions supplied by the censorial authority. The
+re-submission of the MS. to such authority would mean nothing more than
+a further delay, of scant importance alongside the sense of security
+afforded by the process.
+
+On the whole, there can be no argument against censorship as strong
+as the argument in favour of it, and that is the grossly inconsistent
+method of dealing with _risqué_ literature at the present day.
+
+
+
+
+CHAPTER VIII
+
+CAPITAL PUNISHMENT, MURDER AND SUICIDE[28]
+
+
+Murder, which is the summit of evil-doing according to human canons
+is at the same time the most natural act in the world. The so-called
+“unwritten law” which weighs up the evidence in favour of a man who
+kills his wife’s lover, is not without justice and a sense of fair
+play. In England, there is plenty of unwritten law, but it has nothing
+whatever to do with the _crime passionel_. However, if _A_ enters the
+bedroom of his wife and discovers this unfortunate woman with _B_, _in
+flagrante delicto_, to misuse an expression, and he shoots _B_ on the
+spot, he stands a very good chance of escaping the supreme punishment
+of the law. But if _A_, on seeing his wife in the act of adultery
+with _B_, leaves the room, goes downstairs, obtains possession of
+his revolver, and then returns to kill _B_, the position is somewhat
+different. This particular example supplies evidence of _mens rea_, or
+criminal intent. _A_ is not acting in a spontaneous fashion, for he
+deliberately goes away and then returns, with murder in his mind. In a
+good many parts of the world, either way would be justifiable, and, one
+must admit, with some reason.
+
+There is nothing more far-reaching than adultery in a married woman.
+Her future offspring may not be that of her husband, and, at best, he
+believes her body to be tainted with a poisonous contact. The real
+idea of marriage is to keep one woman exclusively for one man, by whom
+it is intended she should fulfil the functions of maternity. To have
+suspicion of outside intercourse is to destroy everything which is most
+profound in the union.
+
+It is usual to divorce a wife who commits adultery, in England: to kill
+her lover and to ostracise her from her home are methods left to other
+races.
+
+In America, the Thaw case, which attracted more interest than the
+facts deserved, was treated in an ultra-civilized manner. Perhaps, if
+the events associated with this _cause célèbre_ had taken place in
+another State of the Union the results would have been different. It
+is true that the relations between Thaw’s wife and White, the murdered
+man, had not been resumed after the marriage, though the incidents
+immediately preceding the shooting at Madison Square Garden should
+have gone a long way towards saving Thaw. Thaw was dining at the Café
+Martin, a well-known restaurant something after the type of the Café
+de la Paix. His wife, the former victim of White, was with him. White
+entered the restaurant and proceeded to make offensive remarks from an
+adjacent table. Thaw, no doubt excited by alcohol, was very properly
+incensed. Later on, after the incident had preyed on his mind, he
+pulled out his revolver and shot White dead. This was at the Madison
+Square Roof-Garden. If White had not made offensive remarks at the
+expense of Thaw and his wife at the Café Martin, it is most improbable
+that any shooting would have occurred. But what with Thaw’s knowledge
+of White’s intimacy with the girl in her early days, and the fact that
+the offender used it as a taunt in a public place, there is little
+wonder that the _dénouement_ was murder. The strict critic may say that
+Thaw should not have made such a marriage.
+
+The instinct to kill in a man confronted by another who has been
+intimate with the woman who became his wife must be very strong,
+particularly among heated temperaments. It is not necessary,
+one may perhaps assume, to have “brain storms,” paranoia, or
+incipient insanity, to produce the exact state of mind, under given
+circumstances, which prompted the shooting at Madison Square Garden.
+One somehow feels that injustice has been done the “murderer” by
+stamping him with the brand of lunacy. It was the only alternative,
+however, as the case went, to the electric chair.
+
+The system of electrocution, meted out to murderers in the State of
+New York, is about as bad, or even worse, than hanging, with which it
+is intended to deal briefly in the present chapter. There is nothing to
+be said against capital punishment, at least on the part of anyone who
+has examined the question in practice, but hanging as the means is an
+antiquated survival of the witchcraft age (though one vaguely remembers
+that “witches” were burnt!).
+
+The French guillotine is a cumbersome contrivance, involving the
+employment of an expert manipulator, with trained assistants, and
+impedimenta. In Germany, where the executioner wields an axe, there is
+the possibility of an absence of precision which fails to recommend
+the method. Quite a dramatic scene was witnessed at the execution of
+a female poisoner in the Kaiser’s dominions the other day. The story
+suggested a Sanscullotic (Carlyle is responsible for the word!) outrage
+of the French Terror. No, the executioner with the axe is a poor way of
+fulfilling the last rites of the law.
+
+If the Kneller portrait of James Scott, Duke of Monmouth, painted
+after execution, is faithful, the executioner was singularly adroit
+with his axe. But the use of the axe depends too much on personal
+dexterity in the evasion of the atrocious. As an institution it is,
+therefore, to be condemned. Hanging, on the other hand, has the Lee
+case as a perpetual warning against it. (It will be remembered that a
+murderer named Lee would not “hang.” He ultimately had his sentence
+commuted to life imprisonment, from which, as an anomaly of the law,
+he emerged in good health, after serving some twenty years.) It is
+elaborate, and anything elaborate, in respect of such a matter as
+the death penalty, savours of anachronism. Of course, there is some
+traditional or legendary nonsense about the ignominy of hanging as
+opposed to execution by the axe, but humanly enforced death is as
+bad in one form as in another so far as the victim goes, so that the
+argument hardly impresses one with its strength. Then, too, the whole
+scheme is barbarous in practice; not that the would-be murderer is more
+deterred by the fear of hanging than he would be by the fear of death
+from a volley of muskets, but the machinery necessary for carrying out
+a death sentence by hanging is out-of-date, crude, and not compatible
+with the advance of the times. By far the simplest, cheapest, most
+effective, worthy means of supporting the majesty of the law in its
+supreme act of retribution is by the shooting of murderers on the day
+set for execution. Half a dozen soldiers, drafted from the nearest
+barracks, could be ordered to fire a volley at the condemned man in
+the prison yard, or in any other place convenient to the authorities.
+The inclusion of soldiers need not necessarily be a stumbling-block.
+Armed prison warders, with some substantial idea of the uses of a gun,
+would fulfil the same purpose. Death, to the condemned man, would be
+just as humane in the abruptness of its arrival as the “six foot drop”
+(or whatever prison parlance and the height of the victim make it). The
+only good thing about hanging is its comparative cleanliness. That is
+to say, there is not a deluge of blood from the person hanged, as there
+is in the case of one decapitated. That is all very well, but death
+from a volley of muskets does not produce the effects associated with a
+slaughter-house, either.
+
+Hanging is little less ridiculous than the Chinese custom of
+walling-in a parricide with masonry, air-holed to delay death. Indeed,
+it is no more appropriate to modern ideas than death from the Tarpeian
+Rock would be. It is quite inconceivable that the rope should have
+stood firm as an instrument of execution as long as it has. In the
+days, not so far back (as recently as 1868), when hanging was carried
+out in public, it had a certain awe-inspiring influence on the ignorant
+mind. But now that the death penalty is executed within prison walls,
+the quickest, easiest, and least complicated method must inevitably
+recommend itself as the best. Death by the volley of muskets should
+take an easy lead, at any rate over hanging. To pinion a man, to stand
+him against a wall, and to order a handful of troops to fire, are
+acts simple and certain in their effect. Advance arrangements become
+unnecessary. The boxing and burial of the dead body are no different,
+after such an episode, than the boxing and burial after a criminal has
+been hanged. The removal of the evidence of taking blood is a detail.
+As a concession to the _soi-disant_ humanitarian, blindfolding could be
+adopted to ameliorate the condition of the condemned.
+
+The writer is no violent antagonist to hanging; he is merely of opinion
+that it could be superseded with some advantage, chiefly because the
+formula is based upon an antiquated conception of punishment, which
+does not seem to him to be as promising as the simple method of
+shooting down the condemned criminal.
+
+A paragraph of some interest may be taken from the current press. It
+is headed, _Optional Suicide: Choice for Murderers_, and it runs as
+follows: “A novel law providing an alternative to hanging for murderers
+on whom the death sentence has been passed was presented to-day to
+the Nevada Legislature. It sets forth that any person about to suffer
+capital punishment, may, if he pleases, swallow a dose of hydrocyanic
+acid. The new law was framed by a Code Commission, partly as the result
+of the difficulty in finding an official executioner in Nevada. The
+officers of the law, it seems, have frequently objected of late to
+figuring in executions, on the ground that though the death sentence is
+provided by the law, they are in fact guilty of voluntarily bringing
+about death. The members of the Code Commission, therefore, adopted
+a suggestion based on the cup of hemlock drunk by Socrates. If the
+new law is passed by the legislature, condemned murderers, after the
+sentence has been pronounced, will be allowed in future immediately
+to designate the method of death they prefer. Ten minutes before the
+time appointed for execution, a physician will visit the prisoner in
+his cell and hand him (or her) a packet of poison, and explain its
+effect and the proper way of taking it. The Bill sets forth that on
+the receptacle containing the poison it shall be plainly written:
+‘There is contained herein a sufficient quantity of hydrocyanic acid
+to cause instantaneous death. You are authorised to take the same for
+the purpose of carrying into execution the sentence of death heretofore
+legally pronounced against you.’ It is further provided that ‘if the
+defendant, after having elected to take the hydrocyanic acid, shall
+fail or refuse to take the same, he shall forthwith be hanged by the
+neck until he is dead.’ The majority of the Legislature are reported to
+favour the Bill as framed by the Code Commission.”
+
+The alternative of suicide given to the person under death sentence
+does not recommend itself to English ideas. The sensibility of “the
+officers of the law” in Nevada should be remedied by an infusion
+of new blood. It is noticeable that the suicide suggestion is an
+alternative to hanging, which appears to be the form usual in the State
+of Nevada. Perhaps, the execution by a volley of muskets would appeal
+to the requirements of the Nevada Legislature?[29] Particularly, as
+the shooting could be done by the soldiery, or by marksmen other than
+“officers of the law.”
+
+Where several persons fire at one and the same time, it is practically
+impossible to say which one is responsible for the shot which actually
+causes death in the person fired upon. This ignorance has often helped
+to soothe the soldier of sensitive conscience when, with others, he has
+had to obey the order to fire on a spy or other person liable to death
+under martial law. This indirectly suggests one of the most curious
+possibilities of legal inadequacy. What is the position of a soldier
+ordered by his officer to fire on a mob? Metaphorically, he is between
+the devil and the deep sea. If he fires on the mob, he may be called
+upon to account for his act to a civil tribunal, and thus be found
+guilty of murder and hanged. While, on the other hand, if he does not
+fire upon the mob, when so ordered by his officer, he may be tried by
+court martial and shot!
+
+To turn from murder to suicide and attempted suicide, much suggests
+itself as anomalous and even absurd in the laws and customs of England
+in this connection. There is an element of farce in the arrest,
+detention and prosecution of some wretched man or woman who has
+unsuccessfully endeavoured to escape from life.[30] Suicide attracts
+numberless persons, excited by neurotic impulses. Sometimes a woman,
+_enceinte_ and deserted by her lover, throws herself into a canal
+or into the river. A man guilty of misappropriation, on the verge
+of having his misdeed discovered, takes poison, shoots himself or
+tries to jump in front of a railway train. If the poison comes up,
+if the shot is inaccurate, or if there is a pit of salvation between
+the railway metals, the would-be suicide may find himself before a
+magistrate the next morning, with a burly policeman as his accuser.
+A well-meant anomaly. When it has run its course, the accused may
+be proceeded against by the person who has suffered through his act
+of misappropriation. There are women who in moments of pique or
+unreasoning rage, do away with themselves, largely because they cannot
+conveniently vent it upon the cause of their discomfiture. Among
+women-servants of inferior type, there is a tendency to commit suicide
+because of some faithless lover, or other cause. These misguided
+creatures generally first write a pathetic letter, disjointedly stating
+their grievances, with the full confidence that it will be published in
+the newspapers of the Sunday following the inquest. This strange vanity
+throws a pitiful ray on the phases of the ignorant mind. Of course,
+suicides are not confined to the lower or intermediate classes, but
+they are more generally found among persons whose lot is not alleviated
+by fortune or gentle birth.
+
+Suicide is not always incomprehensible, though the coroner’s jury,
+with its constant verdict, “during temporary insanity,” would seem to
+make it so. There are plenty of people afflicted by disease, medical
+men among them, who cut their throats or shoot themselves in desperate
+resignation. For purposes of convenience, they are described as of
+unsound mind by the considerate jury. Admittedly, an individual who
+takes his own life is, _primâ facie_, unbalanced--the act indicates it.
+Then, too, physical disease, which has preyed upon a man’s health until
+his judgment has become warped, produces a form of _quasi_-insanity.
+The suicide verdict, “whilst of unsound mind,” may also be agreeable
+to surviving relatives and persons with claims against insurance
+companies, but, strictly speaking, its accuracy is generally doubtful,
+unless a “warped” mental state, hysteria in women, and the product of
+the goadings of misfortune, are symptoms of definite insanity. If this
+is so, there are few people in the land who approximate “sanity.” Of
+course, in subjects who advance to the length of suicide the defects
+specified have reached the stage of personal dominion, or, under
+another name, _idée fixe_, in an acute form. This may technically
+justify the insanity verdict, but it is questionable whether anything
+else would, if one makes allowance for class and ignorance.
+
+By the same process, the man who is goaded into theft by sheer hunger
+must likewise be insane. His misfortunes have produced the hunger and
+the hunger the theft. Thus desperation is often forced upon a man by
+want of funds, something which means prospective, if not immediate,
+hunger, and the sense of desperation in its most active state brings
+about suicide. Whitaker Wright, the convicted felon, committed suicide
+to escape a term of penal servitude. He had a reasonable, if not a
+justifiable, motive for his act. So far as one remembers, off-hand, no
+“temporary insanity” verdict was recorded in his case. Its balsamic
+effect is, however, demanded in countless instances where suicides
+have been prompted by equally explainable motives. Altogether, the
+coroner’s jury’s verdict, of “suicide whilst of unsound mind,” is
+generally inconsistent with the actual facts which led to the act of
+self-destruction.
+
+But the greatest anomaly of all in relation to the verdicts of
+coroners’ juries is the murder verdict at an inquest. Why should
+a perfectly irresponsible body, for a coroner’s jury _is_ an
+irresponsible body in deciding the guilt of an accused murderer, find
+_A_ guilty of the wilful murder of his wife _B_ before the Grand
+Jury[31] has even found a true bill against _A_? The practice is
+utterly absurd. (It may be said here, in parenthesis, that it seems
+a waste of public money to carry on a police court prosecution and
+proceedings before the coroner in connection with the same murder
+charge. It should be noted that an accused person can be committed
+for trial on the coroner’s warrant, though it is usual for the police
+magistrate to do the committing.) It will be remembered that the
+notorious Crippen case occupied the attention of a coroner and his
+jury for some little time. There, certain fleshy remains found buried
+in the cellar of a house in an outlying district of London, formed
+the subject of the inquiry. It was alleged that they were portions
+of a woman’s body. No bones were discovered by the police, and a
+good deal of speculation was rife as to fixing the flesh with the
+hall-mark of identity. It was admitted from the outset that the flesh
+in question was human flesh, but beyond this a difficult task seemed to
+lay before the authorities. It was made less irksome by the presence
+of an operation scar, which turned out to have been on the body of
+Crippen’s wife. The coroner’s jury ultimately found that the flesh
+was the flesh of Cora Crippen, _alias_ “Belle Elmore,” and that H. H.
+Crippen, formerly her husband, was guilty of her wilful murder. There
+was no reasonable doubt as to the accused man’s guilt from the first.
+He had carried on a practice as a medical quack, and in the course
+of his business had employed a typist, Ethel Le Neve, or Neave, with
+whom he cohabited. The Crippen woman disappeared somewhat suddenly;
+inquiries were then set on foot by her friends to ascertain the truth,
+which the husband failed to supply. Soon after receiving a visit from
+a police-inspector, H. H. Crippen himself disappeared, and it was only
+after frantic efforts had been made that the man was discovered to be
+on board a vessel in mid-Alantic. Accompanied by his mistress, he then
+fell an easy prey to his pursuers--after half Europe had been searched
+for him in vain. The murder of which he was accused was a peculiarly
+atrocious one. After poisoning his victim, he had deliberately set his
+partial knowledge of anatomy to account by dismembering the corpse,
+disposing of the bones and secreting the flesh. The man’s remarkable
+nerve, employed in a legitimate channel, might have made him successful
+in life, instead of making him the object of a hue-and-cry from St.
+Petersburg to San Francisco. The story in detail, is newspaper history.
+
+To return to the legal side of the matter, which has numerous less
+notorious parallels, Crippen had been found guilty of the wilful murder
+of his wife in the coroner’s court, though he had not yet been tried
+by any jury qualified by law to convict him of the crime. To point
+out a further anomaly, _i.e._, the fiction that an accused person is
+assumed to be innocent until proved guilty, it may be argued that up
+to the time of his trial at the Central Criminal Court, Crippen was
+technically an innocent man, though he had already been found guilty
+of wilful murder by an unauthorised body of jurors! Such a hopelessly
+inconsistent state of affairs is grotesque in this country which
+is held up as a pattern of justice and legal perfection generally.
+Of course, in the Crippen case there was no sort of doubt whatever
+as to the accused’s guilt; the case is here quoted because it may
+be fresher in the public mind than many other cases, which portray
+similarly anomalous features. At some trials, jurors are subjected to
+downright inconvenience with a view to preventing their contact with
+prejudicial persons or prints. In the Crippen case, the members of the
+Old Bailey jury may reasonably have been expected to see newspaper
+reports dealing with the verdict of the coroner’s jury. If they did
+so read the information contained in these reports, they knew that
+Crippen had already been _found guilty_ of the wilful murder of his
+wife, Cora Crippen, a crime for which they were about to try him. Truly
+enough, Crippen was convicted of murder at the Old Bailey, on evidence
+of a remarkably satisfactory character, taking into consideration the
+complexity of the original clues. But though this is in fact the case,
+there is no gainsaying the grossness of the system which permits a man
+to be publicly found guilty of a terrible offence for which he has not
+yet even been tried.
+
+The coroner’s jury’s verdict of “wilful murder” should be relegated to
+ancient history in these practical times when precision and definity
+rule all things. A coroner’s office gains no lustre by submitting its
+holder to the satirical function of hearing verdicts which are not
+verdicts in law or practice, but which, nevertheless, are liable to
+confuse the ignorant mind and to do harm where good is intended. It
+should be remembered that jurors are not as a rule drawn from a class
+of original thinkers, persons, that is to say, who are intellectually
+trained to discriminate--to judge for themselves. Even if they were,
+the existing custom of allowing a murder verdict to be returned before
+a case goes for trial is both prejudicial and improper.
+
+
+FOOTNOTES
+
+[28] See Appendix D.
+
+[29] Some such scheme appears to have been adopted since this chapter
+was written.
+
+[30] “No fewer than four persons were charged at Marylebone
+police-court this afternoon with attempted suicide.
+
+“The first was a domestic servant, who was found lying in the road,
+having taken poison.
+
+“The Rev. Mr. Shaw, of Dulwich, said she had been in his service
+sixteen months, but left a week ago to enter the service of the sister
+of a great friend of hers. The situation was a great disappointment to
+her, however, for ‘she was accustomed to be in rather refined service,’
+and she complained that she was unable to wear any of her new frocks.
+The result was that she left, and her great friend had thrown her over;
+hence her position in the dock.
+
+“Mr. Paul Taylor remanded her, saying he had never known a woman to
+attempt suicide for less adequate reasons.
+
+“The other defendants were men. Two were remanded, and the third was
+discharged, as he denied that he wanted to kill himself--he bought the
+laudanum found on him for his teeth.”--_Current Evening Paper._
+
+[31] Reference to Grand Juries reminds one that the late Mr. Justice
+Stephen (Sir James Fitz-James Stephen) “expressed his inability to
+understand why a man should be presumed to be innocent when a Grand
+Jury have sworn that they thought him guilty.” (Mr. A. T. Carter,
+D.C.L.) It has been pointed out to the writer, by the way, that
+the members of a Grand Jury sometimes throw out a bill, because,
+“Otherwise, what are we here for?” In other words, without applying
+any very special discrimination, they take upon themselves a function
+opposed to the expert judgment of the committing magistrate, who has
+heard all the evidence.
+
+
+
+
+CHAPTER IX
+
+LEGITIMATION[32]
+
+
+The legitimation of natural children by the subsequent marriage of
+their parents does not apply in England. It is for many reasons a
+defect in the law that this should be so, inasmuch as the process of
+_legitimatio per subsequens matrimonium_ often rights a wrong and does
+justice to those who are kept out of a natural right by the unnatural
+state of the law.
+
+The only way by which the ordinary law can be surmounted respecting
+the legitimation of natural children in this country is by means of a
+Private Act of Parliament, an expensive, if not a difficult, instrument
+to obtain. Among persons of limited income, the financial expenditure
+necessary is a definite barrier.
+
+In these times when fact rules, not the fiction of a long past,
+there can be little excuse for keeping back the clock in the matter
+of legitimation. If a man has lived with an honest woman and had
+children by her, he ought to be able to give those children every
+possible privilege and right by performing with their mother the
+simple requirements of the law relating to marriage. The Private Act
+of Parliament now needful to satisfy the English law should be made as
+obsolete as the Private Act of Parliament required to secure a divorce
+before the year 1858. Great benefit would accrue to the community by
+the easy change suggested. It is not possible to fathom or gauge the
+magnitude of a thing like the illicit union. It exists here and there
+among all classes. Where there are children, there would be a distinct
+incitement, were legitimation by subsequent marriage in force, to the
+legal tie. The artistic temperament, for want of a better name, is
+responsible for many such unions, and their legalisation would be a
+temptation to a man who desires to leave his name and blood on the
+earth without having to start afresh with some other woman on the legal
+system. The healthy and characteristic appearance of his own living
+stock are forceful incentives towards freeing it from all disability in
+law, the more so, when he knows that the mother was, and is, moral in
+instinct and in fact.
+
+In his _Roman Law_, Lord Mackenzie makes some interesting
+references to the theme. “Apart from the effect of legitimation,”
+he writes, “the Roman law only considered those children lawful at
+their birth who were begotten in marriage. It is a peculiarity of the
+English law that it does not concern itself with the conception, but
+considers a child legitimate who is born of parents married before the
+time of birth, though they were unmarried when he was begotten....
+The legitimation of children _per subsequens matrimonium_ originated
+in a constitution of Constantine, which has not reached us, though
+its tenor is given in a law of the Emperor Zeno, who renewed it. The
+import of it was, that persons who had been living in a state of
+concubinage, which was then a condition of society not condemned by
+Roman customs, might, by entering into marriage, render the children
+born in that state legitimate, provided the woman was _ingenua_, or
+free-born, and the man had not already children of a lawful wife. The
+general object of this law probably was to encourage persons who had
+been living in concubinage to enter into marriage. Justinian extended
+the law of Constantine, by declaring that children born in concubinage
+should be legitimate generally, whether the father had legitimate
+children by a lawful wife or not; and he removed the distinction as to
+the woman being _ingenua_ or _libertina_. The children so legitimated
+were subjected to the paternal power, and entitled to all the rights
+of lawful children.... By Roman law the privilege of legitimation _per
+subsequens matrimonium_ was strictly confined to the children of a
+concubine, and did not extend to any other description of bastards....
+Another kind of legitimation, _per oblationem curiæ_, was introduced
+by Theodosius II., A.D. 445. As the duties of a _decurio_ were very
+onerous, and accompanied with risk, a natural son who undertook the
+office was thereby rendered legitimate. A natural daughter who married
+a _decurio_ had the same privilege. Finally, Justinian added a third
+species of legitimation, _per rescriptum principis_, when the emperor
+declared natural children legitimate upon the requisition of the father
+in certain special circumstances; as, for instance, when marriage
+with the concubine had become impossible, and there were no lawful
+children--or when the father, who had from some fortuitous cause been
+prevented from legitimating his natural children in his lifetime,
+declared in his testament that they should succeed to him as lawful
+children and heirs _ab intestato_.... The doctrine of legitimation
+by subsequent marriage is said to have been established in the canon
+law by two constitutions of Pope Alexander III., preserved in the
+decretals of Gregory. The canon law was more indulgent than the
+Roman law, in granting the privilege of legitimacy not merely to the
+offspring of concubinage, but to children begotten in fornication,
+when their parents were afterwards married, provided the father
+and mother were capable of contracting marriage at the date of the
+sexual intercourse.... Legitimation by subsequent marriage was never
+acknowledged by the law of England. When the clergy struggled to
+introduce the rule of the canon law, it was indignantly rejected by the
+famous statute of Merton, the English barons declaring with one voice,
+‘quod nolunt leges Angliæ mutare quæ usitatæ sunt et approbatæ.’ From
+the earliest period the English law has considered a child born before
+marriage (_ante natus_) as illegitimate. And it has been decided,
+that even where the child is born and the parents are subsequently
+married in a foreign country, the law of which allows legitimation by
+subsequent marriage, he is nevertheless incapable of inheriting land
+in England.... On the other hand, the rule of the canon law, which
+allowed the legitimation of all bastards, provided they were not the
+offspring of an incestuous or adulterous connection, has been followed
+both in France and Scotland, not by authority of the decretals, but
+_in consequence of the equity and expedience of the rule itself_.[33]
+By the French Civil Code (art. 331-333) it is declared: (1) ‘Children
+born out of wedlock, other than those born of an incestuous or
+adulterous intercourse, may be legitimated by the subsequent marriage
+of their father and mother, provided the children have been legally
+acknowledged before marriage, or in the act of celebration itself. (2)
+Legitimation may take place even in favour of deceased children who
+have left descendants, and in that case it operates in favour of these
+descendants. (3) Children legitimated by subsequent marriage shall have
+the same rights as if they had been born of that marriage.’... By the
+law of France, marriage makes the children of an illicit connection
+legitimate, although one of the spouses has, after the connection
+and the birth of the children, contracted a marriage with another
+person, and the parents have only married after the dissolution of
+that marriage. As the child legitimated is considered to be born of
+the marriage which has made him legitimate, he cannot participate in
+a succession which has opened before that marriage, though subsequent
+to his birth. For the same reason he cannot claim any preference,
+in respect of mere priority of birth, in any question of succession
+with the children of the intermediate marriage.... In Kerr v. Martin,
+which was elaborately discussed in the Court of Session, the question
+was raised, whether a marriage of either of the parents with a
+third person, after the birth of a natural child, formed a bar to
+legitimation by the subsequent marriage of the parents. Though the
+judges were divided in opinion, the Court, by a majority, decided that
+the child was legitimate, and that no mid-impediment was created by
+the intervening marriage.... In Scotland, legitimation by subsequent
+marriage confers upon a bastard the rights of a lawful child. Besides
+being entitled to legitim, he succeeds under a destination to lawful
+children. In any question with the children born of the bastard’s
+parents in lawful wedlock, he has the same civil rights, as regards
+succession and otherwise, as he would have enjoyed had he been born in
+lawful marriage. But where there is lawful issue of an intermediate
+marriage by one of the parents with a third person, a child legitimated
+by a second marriage seems only a lawful child of the family as
+becoming so by the second marriage, and therefore it is thought he
+can claim no preference in respect to primogeniture or priority of
+birth, which would have the effect of defeating or prejudicing the
+rights of succession of the children of the first marriage arising at
+their birth. According to this view, if the father had a natural son,
+and after this a lawful son by a marriage with a third person, and
+then entered into a second marriage with the mother of the bastard,
+the lawful son by the first marriage would be entitled to the Scotch
+heritage _ab intestato_, and could not be deprived of that right by the
+legitimation of the natural son arising from the _second_ marriage.”
+
+An interesting point of French law, which remains controversial in
+Roman and Scottish law, according to the authority of Lord Mackenzie,
+is that which decides the ineligibility of a child _conceived_ in
+adultery to be legitimated by the subsequent marriage of the parents,
+even though at the time of such child’s birth the parents were free
+to marry. There are other little differences between the French and
+Scottish laws relating to legitimation. On the whole, Scotland is
+well equipped to deal with all such questions. It remains for England
+to follow suit. There is no conceivable room for doubt that if a man
+wishes his natural children to become legitimate, he should have the
+power to make them so, without the considerable formality of an Act
+of Parliament. An Act of Parliament is of course a perfect means of
+accomplishment in the sense that it is a law unto itself, but the
+expense and difficulty of obtaining such an instrument put it on
+an impracticable plane, beyond the reach of nearly all. Though the
+interest of many people in legitimation may be merely abstract, the
+subject is of some marked importance. The laws of any country are
+incomplete without reasonable provision for _legitimatio per subsequens
+matrimonium_.
+
+Interesting cases such as the recent Sackville peerage claim and the
+earlier claim by “Viscount Hinton” to the peerage of Lord Poulett,
+whom he alleged to be his legitimate father, if one may turn a phrase,
+come from time to time before the English courts. Neither of the two
+claims mentioned was successful, but there appeared to be little doubt
+that the claimants in both cases were the offspring of the peers in
+question. To fall at random upon history one remembers that William
+the Conqueror was a natural son. The Duke of Monmouth, who married
+the Countess of Buccleuch (in her own right) was a natural son of
+Charles II., like the ancestor of the Duke of Richmond and Gordon, the
+ancestor of the Duke of Grafton, and the ancestor of the Duke of St.
+Albans, among others. The absence of a legal tie does not prevent the
+perpetuation of blooded stock, though convention and policy have made
+the tie a very necessary formality.
+
+
+FOOTNOTES
+
+[32] See Appendix E.
+
+[33] Mr. Chester’s italics.
+
+
+NOTE IN CONNECTION WITH THE NEXT CHAPTER.
+
+  At the moment of going to press, a singularly strange case is
+  reported in which a convicted murderer, Charles Ellson, has had his
+  conviction quashed by the Court of Criminal Appeal, irrespective of
+  the question of his guilt. The report in outline is as follows:
+
+  “The first successful appeal made by a person convicted of murder
+  since the establishment of the Court of Criminal Appeal was decided
+  yesterday by that tribunal, which quashed the conviction of Charles
+  Ellson for the murder of Rose Render in Clerkenwell. The man, who was
+  present in court, was immediately released.
+
+  “The decision was on technical grounds, apart from the question of
+  the prisoner’s guilt or innocence, and Mr. Justice Darling, giving
+  the judgment of the court, pointed to the case as strengthening their
+  often expressed opinion that the law should provide the court with
+  power to order a new trial in such cases.”--_Daily Mail_, Sept. 29,
+  1911.
+
+
+
+
+CHAPTER X
+
+CRIMINAL APPEAL AND THE BALL CASE
+
+
+The Criminal Appeal Act is brought into operation nowadays by almost
+every notorious murder case. Crippen availed himself of its provisions,
+and, again, more recently, Morrison, the South London murderer, drove
+his appeal through the new Court.
+
+The end of sub-section (3), section 20, of the Act [see Appendix
+F], contains a mildly confusing line, to say the least. It runs,
+“But shall not apply in the case of convictions on indictments or
+inquisitions charging any peer or peeress, _or other person claiming
+the privilege of peerage_, with any offence not lawfully triable by
+a court of assize.” Why a person other than a peer or peeress who
+claims the privilege of peerage should be entitled to any special
+consideration it is impossible to say. A claimant unless his claim has
+been admitted, when he ceases to be a claimant and becomes a possessor,
+cannot conceivably be entitled to any right appertaining to the dignity
+claimed. The only persons entitled to the privilege of peerage are
+peers and peeresses, and a claimant to any such privilege must perforce
+be a peer or peeress or else be a person with no right whatever to the
+privilege of peerage.
+
+The case of R. _v._ Ball and Another is of enormous interest and
+importance, so far as the workings of the Court of Criminal Appeal
+are concerned. It suggests very forcibly the need for definitely
+detaining all criminals pending final appeal, where any intermediate
+step may allow of their liberation. _The Times_ newspaper for December
+16, 1910, reports the case in the following words: “HOUSE OF LORDS.
+Criminal Appeal. Director of Public Prosecutions _v._ William Henry
+Ball.--Director of Public Prosecutions _v._ Edith Lilian Ball.
+(_Before the_ Lord Chancellor, Earl of Halsbury, Lord Ashbourne, Lord
+Alverstone, Lord Atkinson, Lord Gorrell, Lord Shaw _of_ Dunfermline,
+Lord Mersey, _and_ Lord Robson.) This was the first appeal to the House
+of Lords from the Court of Criminal Appeal, consisting of Justices
+Darling, Pickford, and Coleridge, who quashed the conviction against
+the present respondents for incest, which was made a criminal offence
+by an Act which came into operation on January 1, 1909. The trial took
+place at the Central Criminal Court before Mr. Justice Scrutton, who
+sentenced the respondents. The Crown appealed under a section of the
+Criminal Appeal Act, 1907, as was reported in _The Times_ of November
+30.... The Attorney-General (Sir Rufus Isaacs, K.C.), Mr. R. D. Muir,
+Mr. Rowlatt, and Mr. Graham Campbell appeared for the appellant; Mr.
+Holman Gregory, K.C., Mr. Forrest Fulton, and Mr. Eustace Fulton for
+the respondents. The arguments of counsel turned on the admissibility
+of certain evidence tendered by the prosecution. The Lord Chancellor
+moved that the order of the Court of Criminal Appeal be reversed,
+and said that evidence of previous guilty relations between the
+respondents was admissible, not to prove the evidence of a _mens rea_,
+but in support, having regard to the proved facts, of the particular
+charges made in the indictments. The principle that one offence is
+not established by proof of a similar previous offence was one which
+ought to be jealously guarded; but in the present case the evidence was
+clearly admissible.... Lord Halsbury agreed with the Lord Chancellor
+for the same reasons. The other noble and learned Lords concurred.
+Appeal allowed.”
+
+In _The Times_ for December 20, 1910, the same case is again
+reported, this time in its aspect as a novelty. _The Times_, after
+giving the heading, “COURT OF CRIMINAL APPEAL. House of Lords’ Reversal
+of Criminal Appeal. (_Before the_ Lord Chief Justice _of_ England,
+Mr. Justice Pickford, _and_ Mr. Justice Avory)”, states, “Mr. Graham
+Campbell, on behalf of the prosecution, said that this Court a short
+time ago quashed the conviction in this case, and on Thursday last
+the House of Lords made an order reversing that order. The House of
+Lords had no machinery for enforcing its order, and it was therefore
+necessary to come back to this Court for an order to enforce it. The
+Lord Chief Justice: If the order of the Court of Criminal Appeal is set
+aside, you say that the conviction will stand? Mr. Graham Campbell:
+Yes. The Lord Chief Justice: Have the two defendants had notice of
+this application? Mr. Graham Campbell: Yes; the male defendant is
+here, but the female defendant is not present.... Mr. Forrest Fulton
+(Mr. E. Fulton with him) said he appeared for both defendants....
+The Lord Chief Justice: The male defendant must now surrender....
+The defendant having surrendered, Mr. Forrest Fulton submitted that
+the intention of the Legislature in section 1, sub-section 6, of the
+Criminal Appeal Act, 1907--the section which allowed an appeal to the
+House of Lords--was that, so far as the individual defendants were
+concerned, the order of the Court of Criminal Appeal, in quashing the
+conviction, should be final. The decision of the House of Lords was
+intended to be obtained for the guidance and direction of Courts in the
+future. The object of going to the House of Lords was to get a ruling
+on a question of exceptional public importance. The Court of Criminal
+Appeal had exercised the function of the jury, and that Court, having
+allowed the appeal from the conviction, the position was the same as if
+the defendants had been acquitted by the jury.... Judgment: The Lord
+Chief Justice, in giving the judgment of the Court, said that in their
+opinion there was no doubt as to the power and duty of this Court. The
+appeal from this Court to the House of Lords was successful, and the
+order of the House of Lords was that the order of this Court should be
+reversed, and the natural consequence was that the conviction, if he
+might use the expression, was re-established. In these circumstances
+the right procedure had been adopted--namely, to come to this Court,
+which was a court of record, and apply to have effect given to the
+order of the House of Lords, that was to say, to expunge from the
+record of this Court the order which had been made setting aside the
+verdict and entering a verdict of ‘Acquittal.’ It was said by Mr.
+Fulton that this being an appeal by the prosecution, and this Court
+having decided that the appeal should be allowed and a verdict of
+‘Acquittal’ entered, the Court had no power to make a further order
+in consequence of the reversal of their order by the House of Lords,
+the decision of that House being, it was suggested, merely for the
+guidance of Courts in the future. That was a very serious contention,
+and was one which they could not adopt. By section 1, subsection 6, of
+the Criminal Appeal Act, 1907, an appeal to the House of Lords might
+be brought by the prosecution or the defendant or the Director of
+Public Prosecutions if the _fiat_ of the Attorney-General was obtained.
+If the defendant, in a case where the conviction had been affirmed,
+could satisfy the Attorney-General that the case was one of sufficient
+importance, he could take the decision of the House of Lords upon it,
+and if he succeeded in obtaining an order of the House of Lords that
+the decision of the Court of Criminal Appeal dismissing his appeal was
+wrong, he was obviously entitled to ask the Court for an order entering
+a verdict of ‘Acquittal’ and for his immediate release. When the
+present case was before the House of Lords last week the question as to
+the proper procedure was discussed, and an application to this Court,
+which had full power to act in accordance with the order of the House
+of Lords, was considered to be the proper course. As had been pointed
+out by Mr. Justice Pickford during the argument, the finality of the
+decision of the Court of Criminal Appeal was subject to the provisions
+of the Criminal Appeal Act, 1907. It appeared to them that by virtue of
+the decision of the House of Lords the conviction was restored, and,
+if necessary, an order would be made amending the record in accordance
+with the order of the House of Lords. The male defendant would remain
+in custody to undergo his sentence. As regards the female defendant,
+there would be an order for her arrest.... Mr. Forrest Fulton said
+that the male defendant had originally given notice of appeal against
+sentence as well as against the conviction. In view of what happened,
+the question of sentence was not gone into. He (counsel) said he would
+like a short time to consider as to this part of the appeal. The
+Lord Chief Justice said the case could be put in the list again, if
+necessary, early in the next sitting for this point to be considered.”
+
+The Ball case brings out with dispassionate accuracy the utterly
+fantastic possibilities of intermediate acquittal, followed by an order
+for re-arrest. Whether the authorities, in this particular case, took
+the precaution to carry out a very needful network of surveillance,
+between the discharge of the prisoners by the Court of Criminal Appeal
+(when the convictions were set aside), and the moment when the Lord
+Chief Justice gave practical effect to the order of the House of Lords,
+one does not know.
+
+A prisoner once convicted at the Central Criminal Court should have
+no very substantial grievance against law and order if later on he
+is watched during an appeal _entr’acte_. He is in a vastly better
+position than the prisoner convicted before the advent of the Criminal
+Appeal Act, when the conviction usually stood until the sentence had
+been worked out. The word, “usually,” is meant to add distinction
+to the occasional commutation of a death sentence, and to any other
+punitive abatement arising out of the prerogative of mercy, or from
+personal good conduct on the part of the convict. Under the new system
+of appeal, fresh opportunities are allowed the convict to obtain an
+acquittal. It seems clear, therefore, that until the final appeal
+has been settled, he should either be kept under close observation
+or detained in custody. It may be un-English to spy upon the every
+movement of any man, but it is practical and even necessary under the
+possibilities afforded by the Act of 1907.
+
+
+
+
+CHAPTER XI
+
+CLIENT, SOLICITOR AND COUNSEL
+
+
+A member of the Bar who ventures to touch such sensitive plants as
+professional usage and etiquette must almost of necessity do so with
+a sense of diffidence and modesty, that is, if he is not to outrage
+his _esprit de corps_ and attack his own training in the traditions
+of a great _métier_. The partial aim of this chapter is, in avoiding
+revolutionary language, to state as clearly as possible what strikes
+the travelled barrister as a radical disadvantage in his profession.
+
+Usage has made it necessary, except in certain criminal court cases,
+for a client to go to a solicitor--who in due course goes to counsel,
+if the matter comes within the province of counsel. This intermediate
+process of approach is doubly absurd in practice, when it is remembered
+that counsel does not always confer with the solicitor himself but with
+the clerk instead.
+
+It is suggested that the cumbersome necessity for a client to go
+to a solicitor before he can obtain access to first-class advice is
+an anachronism at this time. The inaccessibility of all persons has
+greatly diminished in recent years, with the result that to keep up
+the system of inaccessibility in respect of counsel is often both hard
+on the client and on counsel. It is one of the greatest barriers to
+the Bar as a means of livelihood. It renders a great profession a mere
+speculation, from the financial point of view. It hampers barristers
+who would otherwise be able to do as well as the average holder of a
+medical degree, something which does not apply at present. A doctor of
+medicine, a bachelor of medicine, or a person qualified by the conjoint
+diploma of the Colleges of Surgeons and Physicians, has a profession
+opened up to him which at least may be used to stave off starvation,
+but in the Bar degree there is no tangible reason why starvation
+should not be the very first obstacle encountered by the newly-called
+forensic aspirant. In practice, of course, members of the Bar are
+generally possessed of funds, great or little, but in theory there is
+no particular reason why a “gentleman of the long robe” should not be
+in some difficulty for the price of his dinner a week after his Call to
+the Bar! If one is attacked by illness, one does not send for a chemist
+or go to a chemist and instruct him to obtain a physician. One at once
+establishes direct relations with the medical adviser. Why should not
+this apply equally to the relations of client and counsel? To defend
+one’s interests, to secure one’s rights, to punish the wrong-doer,
+to advise, are among the functions of counsel. Why should he be cut
+off from a client by the obligations of professional etiquette? Why
+should professional etiquette exist which places the profession to
+which it refers at the mercy of another profession, quite separately
+and independently constituted? It is ridiculous to suggest that a
+barrister--unless he is extremely well-known, a financial leader of his
+profession--is selected by the solicitor’s client. The solicitor more
+often than not has the matter in his own hands. Certainly, there is
+nothing to prevent a client from going to a solicitor and naming his
+prospective counsel and insisting on the employment of such counsel,
+but it is not usual as the relations are worked in practice. It is
+partly due to the fact that the average client is so hopelessly out
+of his element in matters of law. He frequently goes to a solicitor
+in trepidation, to almost involuntarily submit to an uncomfortable
+process, which the solicitor selects or inflicts at his discretion.
+The law is not as a rule a recreation for anyone, save a few persons
+whose minds have been turned by years of litigation. Consequently, the
+uninitiated client trusts his solicitor implicitly. He is like wet
+clay in the hands of a potter. He does whatever is recommended. It
+is true that a solicitor has the knowledge that he may be answerable
+in a court of law for want of skill in looking after his client’s
+interests, but a client does not always know this. Indeed, even the
+most rudimentary knowledge in connection with the law and its practice
+is absent in the average person who goes to a solicitor for advice.
+And yet the solicitor’s own knowledge is frequently little above that
+of a mature office-boy, though he generally manages to apply it to
+his own personal profit, at any rate! One does not tar all solicitors
+with the same brush: there are many worthy exceptions; still, there
+is something in the profession of a solicitor which seems to produce
+certain generic failings.[34] The bad name of the profession in the
+eyes of the public is not altogether unfounded; it is something more
+than a cheap superstition or tradition. It gathers force when one comes
+into frequent contact with some firms, which are licensed to practice
+the law. The size of the offices and the number of persons employed are
+not criteria of honesty: one knows of cases where seemingly prosperous
+firms in the best and most central districts are no more trustworthy
+than the solitary tottering scamp who struggles in a meagre garret. On
+the other hand, it is a gamble to go to any solicitor, unless one has
+definite evidence in advance that he is reputed to be just and honest
+in his methods--and has practised his business for some years. There is
+no scoundrel like an old scoundrel, of course, but a well-established
+firm is _primâ facie_ better equipped with the requirements of a
+client than some new firm which has not yet quite felt its feet. Long
+established firms go wrong like newly-established ones, though they are
+perhaps, generally speaking, less liable to, as they have more to lose,
+if the practices they have carried on have been reputable. As a partial
+standard of guidance it is, therefore, wise to go to an old firm
+rather than to a new one. But general reputation, and recommendation
+by former clients, are, after all, the best means of judging such
+questions off-hand. One recalls an instance where a King’s Counsel,
+retired from practice, recommended and upheld in obvious ignorance a
+most shady firm, which, however, had exceedingly well-illuminated,
+large, and central offices! With such an example in one’s memory, where
+one knows the firm to be dishonest, one can but fear that the best
+recommendations are apt to err.
+
+The present writer holds no brief to attack the profession of the
+solicitor: quite the contrary. But he is compelled to admit that he
+has found many solicitors guilty of “dirty tricks” (for which there
+are no punishments) towards their clients. “Dirty tricks,” a vulgar
+but exactly expressive term, may be said to represent those acts in
+which a man of honour or ordinary decency, even, could not indulge. To
+cite some actual examples:--Deceitfully obtaining a signature charging
+certain property with an exaggerated bill of costs on the tacit
+understanding that a loan is to be the result; getting possession of
+papers under a false pretext, where the circumstances are such that
+no remedy exists in law for their recovery; disclaiming a telephone
+message because its dispatch cannot be established in a subsequent
+action; denying the receipt of a client’s funds until threatened with
+the police. These and dozens of other somewhat similar occurrences
+come to mind with clearness. That they are repeated daily all over the
+country is almost indisputable. Petty deceit and meanness are qualities
+which are to be found in a flourishing state in many solicitors’
+offices. A straightforward and reputable solicitor would be the first
+to admit as much. There is some satisfaction in knowing that there are
+still many of the latter type left, though mischance often brings a
+client into contact with the opposite variety, to his cost.
+
+In suggesting that counsel should be enabled to advise a client
+without the intervention of a solicitor, the writer is influenced by
+the greater practical benefit of such a change. That branch of legal
+business which is now in the keeping of the solicitors might remain
+so; the system of carrying out the office work side of a case would
+therefore be on the present basis. But, while the two professions
+could continue to perform their accustomed functions, the alternative
+for a client to approach counsel direct should be approved and
+sanctioned. A freer atmosphere and greater scope would be bestowed upon
+junior counsel if he were able to receive his clients as a medical
+practitioner receives his patients.
+
+In France, there is the distinction between the _avocat_ (or
+barrister) and the _avoué_ (or solicitor), and yet there appears to
+be no hindrance upon the freedom of the _avocat_ in respect of an
+intermediary. In America, the counsellor-at-law, or “attorney-at-law,”
+as he is called in Pennsylvania, unites in his legal qualification
+the right to practise as a solicitor or as a barrister or as both. As
+a matter of fact, an American law office generally contains several
+counsellors-at-law, who divide the court and office work up between
+them. In point of right, however, the counsellor-at-law is perfectly
+justified in carrying on the joint profession of a barrister and a
+solicitor. This system is not recommended here, though it seems to
+work well in America. All--and it may appear a great deal to some
+people--which one ventures to recommend is the freeing of counsel
+from the disability of compelling a solicitor’s intervention. That
+is to say, no change in the existing system is recommended beyond
+sanctioning the more direct form of access. A solicitor could intervene
+in the ordinary way between a client and counsel, but counsel should
+be at liberty to advise, or to advocate the cause, of any client who
+chose to present himself without the usual intermediary. Advance of
+the times must almost certainly produce some such system. There can
+be little doubt that the profession of an advocate would be much
+facilitated by the change. Indeed, the only possible sufferers would be
+the solicitors, whose profession offers sufficient variety of work to
+enable them to sacrifice the costs arising from the invariable custom
+of intervention. In a great number, perhaps, truly, in the majority, of
+cases, the present custom might continue to apply; in some, in many,
+confessedly, clients and barristers would alike avail themselves of
+the less circumscribed relations. If a member of the Bar is allowed
+to take “a docker,” or defence direct from a prisoner in the dock, he
+should certainly, it seems only just to infer, be allowed to admit a
+client to his chambers, unaccompanied by a solicitor. The fee could
+be collected by the clerk on the same cash principle which applies
+to the transactions of the greatest medical experts, or specialists.
+Certainly, the suggestion has something to recommend it, particularly
+in these days of practical thought.
+
+If a barrister of the Court of Appeal of Paris, or a member of the New
+York Bar, can be approached direct, there is reason to suppose that
+the system suggested is neither gross nor one calculated to destroy
+prestige.
+
+The question of counsel’s fees is not without some interest to
+laymen, as well as to those more intimately concerned. The great
+incomes derived from practices at the Bar are largely imaginative. The
+forty thousand a year of a certain very well-known practitioner was
+probably never more than approximated by half that sum in reality. The
+sixty thousand odd attributed to a leader of the Parliamentary Bar
+in his ordinary years was also, in all probability, half fictitious.
+Large fees, of course, have been known in every age. Under the Roman
+Republic, M. Licinius Crassus made a fortune from advocacy, which
+fortune, it is said, exceeded three millions sterling. He carried the
+reputation, however, of exacting exorbitant fees from his clients. A
+similar charge was made against P. Clodius and C. Curio. Cicero, too,
+though he boasted of his respect for the Cincian law, which prohibited
+the remuneration of advocates, was not without suspicion of mercenary
+conduct. Lord Mackenzie, who touches upon the subject, believes that
+he extracted a million sesterces (about £8,000) from Publius Sylla,
+who was under impeachment. The money was cloaked, according to the
+custom, as a loan, but there is no doubt it was paid in exchange for
+Cicero’s services as an advocate. Another Roman method of rewarding
+members of the Bar was by legacies left them by their clients in their
+wills. These bequests were looked upon with some favour. Cicero boasted
+that he had received in this form sums amounting to upwards of twenty
+millions of sesterces, which was the equivalent of about £166,666.
+
+It is interesting to note that there was a division of lawyers into a
+first order, of _advocati_, and into a second order, of _formularii_,
+under the Roman Empire.
+
+Members of the English Bar, it may be pointed out, cannot sue for fees,
+“although there be an express contract to pay them.”
+
+“In France, ancient laws and decisions, as well as the opinions of
+the doctors, allowed an action to advocates to recover their fees; but
+according to the later jurisprudence of the Parliament of Paris, and
+the actual discipline of the Bar now in force, no advocate was or is
+permitted to institute such an action.” (Lord Mackenzie.)
+
+So far as large fees are concerned, the £8,000 paid to Sir Thomas Wilde
+(afterwards Lord Truro) in the case of Small _v._ Attwood is something
+of a record, though it is eclipsed by the 300,000 francs received by
+Gerbier, the eighteenth-century French advocate, from a French colonial
+governor.
+
+“In the sixteenth century, and for some generations previous, it
+was customary for clients to provide food and drink for their counsel.
+Here is an extract from a bill of costs made in the reign of Edward
+IV.--‘For a breakfast at Westminster spent on our counsel, 1_s._ 6_d._;
+for boat hire in and out and a breakfast for two days, 1_s._ 6_d._’
+Another item, from the parish books of St. Margaret’s, Westminster,
+runs thus--Also paid to Roger Fylpott, learned in the law, for his
+counsel given 3_s._ 8_d._, with 4_d._ for his dinner.... When Sir
+Thomas Moore lived in Bucklersbury, he ‘gained, without grief, not so
+little as 400_l._ by the year. Considering the relative profits of the
+Bar, and the value of money,’ says Lord Campbell, ‘this income probably
+indicated as high a station as 10,000_l._ a year at the present day.’
+In the reign of James I., the nominal salaries paid to the judges and
+Crown lawyers were extremely low; their real incomes were derived from
+certain fees which had to be paid into Court before any suitor could
+obtain a hearing. ‘Francis Bacon,’ says Mr. Hepworth Dixon, ‘valued
+his place as Attorney-General at 6,000_l._ a year, of which the King
+paid him only 81_l._ 6_s._ 8_d._.’ Mr. Dixon goes on to mention several
+similar instances, adding, ‘Yet each of these great lawyers had given
+up a lucrative practice at the Bar. After their promotion to the Bench
+they lived in good houses, kept princely state, gave dinners and
+masques, made presents to the King, accumulated goods and lands.’ Sir
+Edward Coke had made a still larger income as Attorney-General, the
+fees from his private and official practice amounting to 7,000_l._ in a
+single year.... We confess ourselves unable to reconcile such figures
+as these with Lord Campbell’s statement about Sir Thomas Moore. Either
+within a hundred years the value of money had enormously declined,
+or Coke was making an income far exceeding anything attainable at
+the present day. In his survey of the state of England in 1685, Lord
+Macaulay says:--‘A thousand a year was thought a large income for a
+barrister; 2,000_l._ a year was hardly to be made in the Court of
+King’s Bench, except by Crown lawyers.’ Mr. Jeaffreson (in his _Book
+about Lawyers_) impugns the accuracy of this statement, holding that
+the former part of it is based on a passage in _Pepys’s Diary_. As long
+ago as 1668, the Admiralty was a favourite target for Parliamentary
+orators to shoot at, and Mr. Pepys, after priming himself with good
+liquor, made such a spirited speech in behalf of his department that
+his friends complimented him hugely, assuring him that if he would but
+put on a gown and plead at the Chancery Bar, he could not get less than
+1,000_l._ a year. We see nothing to complain of in this portion of Lord
+Macaulay’s statement, especially as Mr. Jeaffreson himself adds in a
+note, ‘Among advocates in Charles II’s reign, a professional income of
+a thousand a year signified a practice and popularity that placed a
+barrister in the second rank of the unquestionably successful followers
+of the law. Somers was thought a fortunate and rising counsellor when
+he enjoyed Lord Chancellor Nottingham’s favour, and made 700_l._ a
+year.’ But the credit of the second part of Lord Macaulay’s statement
+is certainly shaken by an examination of the fee-book of Sir Francis
+Winnington, who was Solicitor-General to Charles II. In 1673 he
+received 3,371_l._; in 1674, 3,560_l._; and in 1675--the first year of
+his tenure of the Solicitor-General’s office--4,066_l._, of which only
+429_l._ were office fees. Lord Keeper North made 7,000_l._ a year as
+Attorney-General, and his brother, Roger, gives an amusing description
+of his mode of bestowing the fees in three skull-caps--one for the
+gold, one for crowns and half-crowns, and one for small money. In those
+golden days the barrister did not open his mouth until his fingers had
+closed on his client’s money, and credit was unknown in transactions
+between counsel and attorney. A good deal of base money used, however,
+to be taken on these occasions, and Bishop Burnet gravely praises Sir
+Matthew Hale for his justice and goodness in not putting this flash
+coin again into circulation. The worthy Judge’s virtue was emphatically
+its own reward. He had gathered together a vast heap of this spurious
+coin, when some thieves broke into his house, and contentedly carried
+it off, believing that they were helping themselves to his hoarded
+treasure. The practice of the Bar does not appear to have become more
+lucrative in the reign of George II. than it was many years earlier.
+During the last year of his tenure of the Solicitor-Generalship,
+Charles Yorke earned 7,322_l._ Lord Eldon’s fee-book shows a great
+advance. In 1794, he received 11,592_l._; in 1795, 11,149_l._; in 1796,
+12,140_l._ Previous to Erskine’s elevation to the Bench, he received on
+an average twelve special retainers in the year, from which he gained
+at least 3,600_l._ Elsewhere (_Times Review_) we read of Erskine--‘It
+is four and a half years since he was called and in that time he has
+cleared 8,000_l._ or 9,000_l._, besides paying his debts, obtaining a
+silk gown, and a business of at least 3,000_l._ a year.’”[35]
+
+In bringing this chapter to a close, it seems only fitting again to
+lay stress on the desirability of entitling a barrister to receive a
+client without the obligatory intervention of a third person, namely,
+a solicitor. An absurd anomaly, _the legal assumption that every man
+knows, or is expected to know, the law_, would perhaps be somewhat
+nearer fulfilment, if counsel were less unapproachable than they are
+to-day.
+
+  [Mr. Chester wishes it to be clearly understood that his suggestion
+  of a direct approach to counsel is only put forward because he has
+  witnessed the success of the system in other countries--otherwise, he
+  would not venture to mention such an innovation. In this chapter, at
+  any rate, he desires to assume the _rôle_ of commentator rather than
+  that of an advocate.]
+
+
+FOOTNOTES
+
+[34] In the current press for March 20, 1911, there is the following
+report, under the heading, “_Solicitors Struck off the Rolls_: King’s
+Bench Divisional Court.--Justices Ridley, Darling and Channell.... Upon
+the application of Mr. T. Payne, appearing for the Law Society, the
+following solicitors were ordered to be struck off the Rolls:--Patrick
+Burke, formerly of Bridge Street, Manchester; Francis Ernest Swann,
+formerly of Fleet Street; and John Milton Kerr, formerly of Halifax....
+It appeared that the statutory committee found Patrick Burke guilty of
+misappropriation of clients’ money, including £1,000 out of £2,250,
+handed to him by the Mother Superior of the Order of St. Joseph,
+for the purpose of purchasing a house at Stafford for the sisters
+upon their expulsion from France. The papers were sent to the Public
+Prosecutor and a warrant was issued, but the solicitor could not be
+found.... Francis Ernest Swann, on October 11, 1910, was sentenced
+to five years’ penal servitude at the Central Criminal Court for the
+fraudulent conversion of £1,700.... John Milton Kerr was convicted at
+Leeds in November last of the fraudulent conversion of £1,976, and
+sentenced to three years’ penal servitude.”
+
+[35] _Legal Anecdotes_, edited by John Timbs.
+
+
+
+
+CHAPTER XII
+
+THE MORALITY BILL, ACCESSION AND CORONATION DECLARATIONS AND OATHS
+
+
+I. THE MORALITY BILL
+
+The Morality Bill, so designated because of its peculiar provisions,
+contains some instructive reading. The most questionable provision in
+the Bill is formed by a portion of sub-section (1), section 9. “If any
+woman, who is a prostitute or a reputed prostitute, shall permit any
+boy to have connection with her ... such woman shall be guilty of a
+misdemeanour, and shall be liable upon conviction on indictment to be
+imprisoned, with or without hard labour, for any term not exceeding two
+years.” “Boy” for the purposes of the Bill means a male under the age
+of nineteen years.
+
+Such a provision could scarcely be conceived in any country other than
+England or America. No doubt it is well-meant, but in the complex state
+of society in towns, it is almost incapable of being put into practical
+effect.
+
+That part of subsection (1), section 19, which makes it punishable
+for any person to favour or encourage the connection between a boy and
+a prostitute, is quite above reproach. The Bill in its other provisions
+is largely protective and meritorious. Its punitive side is also
+justified: indeed, it is scarcely harsh enough towards the man who
+lives on the immoral earnings of a woman: “Any person who knowingly
+lives, either wholly or in part, upon the immoral earnings of a woman
+(subsection (1), section 13), shall be guilty of a misdemeanour, and
+shall be liable, if a male, to be imprisoned upon summary conviction
+for any term not exceeding six months, with or without hard labour,
+or upon conviction on indictment for any term not exceeding twelve
+months, with or without hard labour.... Where a person is convicted
+on indictment of an offence under this section, it shall be lawful
+for the Court to direct that he be subject to the supervision of the
+police under section eight of the Prevention of Crimes Act, 1871,
+notwithstanding that he has not been previously convicted of crime.”
+The summary conviction limit of six months is inadequate: so, likewise,
+is the limit of twelve months fixed for the punishment on conviction on
+indictment. The offence is one of the worst under the criminal law from
+the human standpoint; it is not only _mala quia prohibita_ but _mala
+per se_ in the public mind. The scoundrels who traffic in prostitution
+well deserve a greater punishment than the Bill suggests. “Prostitutes”
+in this sense does not mean the street women of the West End so much
+as those girls who are lured from the Continent, on a promise of high
+wages in London milliners’ shops, and then forced for a time at least
+by the women who import them to frequent certain so-called theatrical
+resorts. Many of these girls are not naturally vicious; they are
+merely the prey of the older women who work in conjunction with male
+supporters, some of whom take as much as thirty or forty pounds a week
+from the earnings of one of the victims. The men in question advise on
+and direct matters through the older women: as a matter of business,
+when the necessity arises, they also supply persons to perform illegal
+operations. To give an illustration of the _modus operandi_, generally,
+it will be necessary to narrate a passage from the history of one
+of these atrocious enterprises. _A_, a Paris shop-girl, aged 19,
+good-looking and well-formed, was induced to come to this country by
+_B_, a South American harlot established in London. The inducement was
+a very good wage at a West End shop where the English language could
+easily be picked up, according to report. _A_, a perfectly respectable
+girl, agreed to come to London with _B_, and shortly afterwards she
+found herself in a flat in Oxford Street (the rent of which was about
+£7 a week). She was kept at the flat until some evening dresses had
+been obtained, and then she was taken to a certain variety theatre
+by _B_. The girl could speak no English and her character was not
+self-assertive or strong. She knew nothing about French consuls or the
+English police, and, then, too, her ordinary wearing apparel had been
+taken from her by _B_. She, therefore, found herself on this first
+occasion, in the brightly-lighted promenade of a “music hall,” with
+many well-dressed men and women in her immediate vicinity. _B_ was
+near at hand to keep a watchful eye upon her. A patron of the place,
+one who was fluent with his French, soon made off with her to the
+flat in Oxford Street, to which he had been directed by _B_. (_A_ was
+herself incapable of supplying the address to the cabman). The girl
+then explained that she had had her ordinary clothes taken from her
+by _B_, that _B_ kept a man in the background, and that she, _A_, was
+entirely helpless. At a subsequent meeting, _A_ explained that _B_ took
+possession of about forty pounds a week, from her, and that the pretext
+was that it was being banked! The only clothes to which she, _A_, had
+access were evening gowns; she was kept without money, too, under
+constant surveillance, amid conditions which she did not like. The
+final scene was enacted a few months later, when the person, to whom
+_A_ had confided her story, went to the flat and found her missing. Her
+place had been filled by a newly-arrived _girl of fifteen_, procured
+by the same process from a Paris shop. On persistent enquiry, _A_ was
+found in another room suffering from the consequences of an illegal
+operation, which had been forced upon her by the joint efforts of _B_
+and the male director of affairs.
+
+A maximum penalty of twelve months’ hard labour for a scoundrel of the
+stamp of _B’s_ “lover” is most disproportionate to the offence. Of
+course, such a man would be liable to a greater penalty, if a girl of
+fifteen years of age were brought into the case. But on the other facts
+alone, the law should be less merciful.
+
+Section 10, of the Morality Bill, is worth transcribing in full.
+
+“(1) If any male person shall have connection with a woman who is to
+his knowledge his granddaughter, sister, daughter, niece, or mother,
+he shall be guilty of felony, and shall be liable upon conviction on
+indictment to be imprisoned, with or without hard labour, for any term
+not exceeding two years, or be kept in penal servitude for any term not
+less than three years and not exceeding seven years: Provided that if
+it is alleged in the indictment and proved that the girl was, at the
+time of the commission of the offence, under the age of sixteen years,
+the maximum term of penal servitude which the court may inflict shall
+be ten years.
+
+“(2) If any male person shall attempt to have connection with a woman
+who is to his knowledge his granddaughter, sister, niece, or mother, he
+shall be guilty of a misdemeanour, and shall be liable upon conviction
+on indictment to be imprisoned, with or without hard labour, for any
+term not exceeding two years.
+
+“(3) If any woman, not being a girl, shall permit her grandfather,
+father, brother, uncle, or son to have connection with her (knowing
+him to be her grandfather, father, brother, uncle, or son, as the case
+may be) she shall be guilty of a felony, and shall be liable upon
+conviction on indictment to be imprisoned, with or without hard labour,
+for any term not exceeding two years, or to be kept in penal servitude
+for any term not less than three years, and not exceeding seven years.”
+
+Where the word “mother” is used in the first part of subsection
+(1), at sight it appears careless to put, nearer the end of the
+same subsection, “provided that if it is alleged in the indictment
+and proved that _the girl was, at the time of the commission of the
+offence, under the age of sixteen years,” etc._
+
+The “Memorandum” preceding the Morality Bill contains an epitome of the
+whole conception. “The general object of this Bill is to substitute
+for the Criminal Law Amendment Act, 1885, the Vagrancy Act, 1898, the
+Punishment of Incest Act, 1908, the Obscene Publications Act, 1857,
+the Indecent Advertisements Act, 1889, and certain other enactments,
+a comprehensive measure which shall materially strengthen the law
+relating to offences against morality and decency.... The chief
+proposals of the Bill are:--
+
+“1. To raise ‘the age of consent’ to nineteen, the full offence to be
+felony, and the maximum punishment to be--(_a_) if the girl is any age
+under sixteen, penal servitude for ten years; (_b_) if the girl is over
+sixteen, penal servitude for five years.
+
+“2. To protect all feeble-minded women and girls, the full offence to
+be felony, the attempt a misdemeanour, and the maximum punishment to be
+for the felony penal servitude for five years, and for the misdemeanour
+imprisonment for two years.
+
+“3. To make it felony to obtain, and a misdemeanour to attempt to
+obtain, consent by any inducement or threat in connection with
+employment, the maximum punishment to be for the felony penal servitude
+for five years, and for the misdemeanour imprisonment for two years.
+
+“4. To make it a misdemeanour for any woman or girl of abandoned
+character to permit a boy under nineteen years of age to have immoral
+relations with her, or for any person to favour or encourage such
+relations, the maximum punishment to be imprisonment for two years.
+
+“5. To make the full offences specified in section two, which relates
+to procuration, of the Criminal Law Amendment Act, 1885, felonies, for
+which the maximum punishment is to be penal servitude for five or ten
+years, according to the age of the girl; and to extend the protection
+against procuration, and attempted procuration, now enjoyed by girls of
+good character under the age of twenty-one--(_a_) to all women of good
+character; (_b_) to all feeble-minded women and girls, whatever their
+character; (_c_) to all girls under the age of nineteen, whatever their
+character.
+
+“6. To make the offences specified in subsections (1) and (2) of
+section three of the Criminal Law Amendment Act, 1885 (_viz._,
+procuration by threats or false pretences, etc.), felonies for which
+the maximum punishment is to be penal servitude for five or ten years,
+according to the age of the girl; and to make an attempt to procure by
+false pretences a misdemeanour for which the maximum punishment is to
+be imprisonment for two years.
+
+“7. To make the offence specified in subsection (3) of section three
+of the Criminal Law Amendment Act, 1885 (_viz._, the administration of
+drugs for an immoral purpose) felony for which the maximum punishment
+is to be penal servitude for ten years.
+
+“8. To make the offences specified in sections six, seven and eight
+of the Criminal Law Amendment Act, 1885 (_viz._, the offences of
+permitting defilement on premises, of abduction for an immoral purpose,
+and the unlawful detention for such purpose) felonies for which the
+maximum punishment is to be penal servitude for five or ten years,
+according to the age of the girl.
+
+“9. To make an offence under section eleven of the Criminal Law
+Amendment Act, 1885--(_a_) when committed with a boy under the age of
+sixteen years, felony for which the maximum punishment is to be penal
+servitude for ten years; (_b_) when committed with a person over that
+age, felony punishable with penal servitude for five years.
+
+“10. To make the keeping of premises for immoral purposes a
+misdemeanour punishable summarily with a fine of 50_l._ and
+imprisonment for six months, or upon conviction on indictment with a
+fine of 200_l._ and imprisonment for two years.
+
+“11. To make further provision for the suppression of indecent,
+immoral, and grossly offensive literature, pictures, advertisements,
+etc., the offence to be a misdemeanour punishable upon summary
+conviction with a fine of 50_l._ and imprisonment for six months, or
+upon conviction on indictment with a fine of 100_l._ and imprisonment
+for twelve months. Further powers are given to the Postmaster-General.
+
+“12. To make it a misdemeanour punishable upon summary conviction
+with imprisonment for six months, or upon conviction on indictment
+with imprisonment for twelve months, for any male person knowingly to
+live upon the immoral earnings of a woman or girl; and to make it a
+misdemeanour punishable upon summary conviction with imprisonment for
+six months for any woman to do so. (The expression ‘immoral earnings’
+is defined to mean the earnings of prostitution or of habitual
+immorality.)
+
+“13. To make it a misdemeanour punishable summarily with imprisonment
+for six months, or upon conviction on indictment with imprisonment for
+twelve months, for a male person to solicit persistently for an immoral
+purpose in a street or public place.
+
+“14. To make ordinary cases of soliciting punishable summarily with a
+fine of 10_l._, or with imprisonment for two months without the option
+of a fine, or upon a second or subsequent conviction with a fine of
+30_l._, or with imprisonment for six months without the option of a
+fine.
+
+“15. To extend to an amended form the provisions of the Children’s
+Act, 1908, relating to persons having the custody of girls, and either
+causing their seduction or not exercising due care, to the cases of
+girls between the ages of sixteen and nineteen years.
+
+“16. To strengthen the provisions of the Children’s Act, 1908, relating
+to the punishment of parents and others who allow children and young
+persons to reside in or frequent premises kept for immoral purposes;
+and to extend those provisions to the protection of persons between the
+ages of sixteen and nineteen.
+
+“17. To enable a person who is convicted on indictment of--(_a_)
+keeping premises for immoral purposes; or (_b_) living on a woman’s
+immoral earnings, being a male; or (_c_) persistently soliciting, being
+a male; or (_d_) selling indecent literature, etc., to be placed under
+police supervision, notwithstanding that such person has not been
+previously convicted of crime.
+
+“18. To require courts to recommend for expulsion aliens over the age
+of nineteen who are convicted of certain offences.
+
+“19. To restrict the punishment for rape to penal servitude for not
+more than ten years, except under certain aggravated circumstances,
+when the maximum term is to be fifteen years.
+
+“20. To restrict the punishment for offences under sections fifty-eight
+and sixty-one of the Offences against the Person Act, 1861, to penal
+servitude for not more than ten years, and for offences under section
+sixty-two of that Act to penal servitude for not more than seven years.
+
+“21. To re-enact the Punishment of Incest Act, 1908; to extend its
+range; and to make such other amendments as are required to render its
+provisions consistent with the above proposals, the full offence to be
+felony.
+
+“22. To restrict the punishment of young offenders for any of the above
+offences (including rape, incest, etc.) by providing--(_a_) that no
+person under the age of twenty-one shall be liable to a longer term of
+penal servitude than seven years, unless he is guilty of rape under
+certain aggravated circumstances, in which case he is to be liable to
+penal servitude for ten years; and (_b_) that no person under the age
+of eighteen shall be liable to penal servitude.
+
+“23. To render an indecent assault upon a person under the age of
+nineteen years, cognizable summarily with the consent of the accused,
+but to increase the maximum term of imprisonment which a court of
+summary jurisdiction may, under those circumstances, inflict, to six
+months. (_Cf._ a similar provision in the Children’s Act, 1908.)
+
+“24. To enable the court to be cleared (representatives of the press
+being allowed to remain) during proceedings relating to offences
+against morality or decency, and to enable the worst of such cases to
+be tried _in camera_.
+
+“25. To repeal--(_a_) The Criminal Law Amendment Act, 1885; (_b_) The
+Vagrancy Act, 1898; (_c_) The Punishment of Incest Act, 1908; (_d_)
+Sections sixteen, seventeen, eighteen, one hundred and twenty-eight
+(2), of the Children Act, 1908, and the Second Schedule of that
+Act; (_e_) The Obscene Publications Act, 1857; (_f_) The Indecent
+Advertisements Act, 1889; (_g_) Other enactments.”
+
+The comprehensive nature of the Morality Bill can scarcely be doubted
+after a perusal of the foregoing _Memorandum_. There is no question
+whatever, the bulk of the provisions are good. But the penal offence
+constituted by a prostitute’s intercourse with a boy under nineteen
+seems somewhat far-fetched. The intention may be good, though it would
+look peculiar as a section of a statute. There is no need to comment
+further on the subject here.
+
+Prior to going through the Bill, the writer had intended suggesting
+the insertion in it of the following provision: “In any case where it
+has been proved that a girl was induced to sexual intercourse on the
+promise or understanding that a theatrical or other engagement was
+to be the result of such intercourse, or where a theatrical or other
+engagement has already been obtained and is to be continued only on
+submission to an act of sexual intercourse with a manager, proprietor,
+or other person in authority, then such person shall be guilty of a
+misdemeanour punishable with imprisonment with or without hard labour
+for any term not exceeding twelve months.” On examining the contents of
+the Bill, he, however, found the contingency provided for in section 8.
+
+“8.--(1) If any male person shall obtain, or if any person of either
+sex shall aid or abet any male person in obtaining, connection with any
+woman by any inducement or threat in connection with her employment
+in any capacity, or with any attempt on her part to obtain employment
+in any capacity, such person shall be guilty of felony, and shall
+be liable upon conviction on indictment to be imprisoned, with or
+without hard labour, for any term not exceeding two years, or to be
+kept in penal servitude for any term not less than three years and not
+exceeding five years. (2) If any male person shall attempt to obtain,
+or if any person of either sex shall aid or abet any male person in
+attempting to obtain, connection with any woman by any inducement or
+threat in connection with her employment in any capacity, or with any
+attempt on her part to obtain employment in any capacity, such person
+shall be guilty of a misdemeanour, and shall be liable upon conviction
+on indictment to be imprisoned, with or without hard labour, for any
+term not exceeding two years.”
+
+There are two classes of enterprise which are peculiarly associated
+with what may be termed submissive immorality for the purpose of
+legitimate employment. In the one class the victim’s downfall finds
+its beginning in connection with theatrical aspirations, whereas in
+the other class it is indirectly brought about by the demands of
+fashion. There is reason to believe that a well-formed, good-looking
+girl, who is anxious to get on the stage will often only accomplish her
+desire by first submitting to sexual intercourse with her prospective
+employer. This is not always so, naturally, but it is a general custom
+in some quarters. In many, if not in most cases, submission means the
+seduction of a previously virtuous girl. The condition precedent to
+a theatrical engagement, more particularly on the “musical comedy”
+stage, is, therefore, of such a character that the harshest measures
+are needed to put it down. The whole process is iniquitous. On the one
+hand, there is an eager, inexperienced young woman, foolish enough
+to want to go on the stage, and on the other, there is a calculating
+scoundrel who regards her as his certain prey. The second important
+variation to the offence of carnally knowing a woman, through the
+influence of her employment, frequently arises in West End milliners’
+shops. The employment by male _costumiers_--that is to say, at the
+most fashionable shops--of attractive young women, who, for their
+figures and appearance, are chosen as models to display Paris hats and
+costumes, gives rise to a whole series of iniquitous conditions which
+would shame the most indecent novel. Models of the sort referred to are
+generally subjected to much the same treatment as the “musical comedy”
+aspirants, but there is this difference--that the former usually obtain
+the engagement before the “cloven hoof” of their employer begins to
+show itself.
+
+The searchlight of vigilance would consume itself were it applied to
+half the subjects which pass through one’s mind as suitable for attack.
+That is to say, in connection with submissive immorality for the
+purpose of legitimate employment.
+
+
+II. ACCESSION AND CORONATION DECLARATIONS AND OATHS
+
+This little work would, perhaps, be incomplete without some mention of
+the Accession Declarations and Coronation Oaths.
+
+It is first proposed to incorporate here the “Declarations of Heads of
+States” which declarations were collected and ordered to be printed by
+the House of Commons in May, 1901.
+
+
+GREAT BRITAIN AND IRELAND.
+
+  I. _Declaration made by the King, on his Accession, in the House of
+  Lords, pursuant to section 1 of the Bill of Rights 1 W. & M. sess. 2,
+  c. 2_.
+
+  I, EDWARD, do solemnly and sincerely, in the presence of God,
+  profess, testify, and declare, that I do believe that in the
+  Sacrament of the Lord’s Supper there is not any transubstantiation of
+  the elements of bread and wine into the body and blood of Christ at
+  or after the consecration thereof by any person whatsoever; and that
+  the invocation or adoration of the Virgin Mary or any other Saint,
+  and the sacrifice of the Mass, as they are now used in the Church
+  of Rome are superstitious and idolatrous, and I do solemnly, in the
+  presence of God, profess, testify, and declare, that I do make this
+  declaration and every part thereof in the plain and ordinary sense
+  of the words read unto me as they are commonly understood by English
+  Protestants without any evasion, equivocation, or mental reservation
+  whatsoever, and without any dispensation already granted me for this
+  purpose by the Pope or any other authority or person whatsoever, or
+  without any hope of such dispensation from any person or authority
+  whatsoever, or without thinking that I am or can be acquitted before
+  God or man, or absolved of this declaration or any part thereof
+  although the Pope or any other person or persons or power whatsoever
+  should dispense with or annul the same, or declare that it was null
+  and void from the beginning.
+
+  II. _Oath with regard to the Church of Scotland, taken by the King at
+  his first Council, on 23rd January, 1901._
+
+  I, EDWARD VII., King of the United Kingdom of Great Britain and
+  Ireland, Defender of the Faith, do faithfully Promise and Swear that
+  I shall inviolably maintain and preserve the settlement of the true
+  Protestant Religion, with the Government, Worship, Discipline, Rights
+  and Privileges of the Church of Scotland as established by the Laws
+  made there in prosecution of the Claim of Right, and particularly
+  by an Act, intituled An Act for securing the Protestant Religion
+  and Presbyterian Church Government, and by the Acts passed in the
+  Parliament of both Kingdoms for Union of the two Kingdoms.
+
+  SO HELP ME GOD.
+
+
+EMPIRE OF GERMANY.
+
+There is no provision in the constitution of the German Empire for an
+oath regarding the constitution on the part of the German Emperor; nor
+does the constitution contain provisions respecting the making of a
+promise on oath or of other solemn declarations by the Emperor. On the
+other hand, the King of Prussia, in accordance with Article 54 of the
+Charter of the Constitution for the State of Prussia, in the presence
+of the United Chambers of the Prussian Diet, makes a promise on oath
+“to keep the constitution of the Kingdom fixed and inviolable, and to
+govern in accordance with it and with the laws.”
+
+
+UNITED STATES.
+
+The oath or Affirmation taken by the President of the United States
+before the entrance upon the execution of his office is prescribed by
+the Constitution of the United States (Article II., section 1), and is
+as follows:--
+
+  “I do solemnly swear (or affirm), that I will faithfully execute the
+  office of President of the United States, and will, to the best of my
+  ability, preserve, protect and defend the Constitution of the United
+  States.”
+
+
+FRANCE.
+
+The President of the French Republic takes no Oath on the assumption of
+office.
+
+
+AUSTRO-HUNGARY.
+
+The Emperor on his Accession takes the Solemn Oath in the presence of
+both houses of the Reichsrath--
+
+“To maintain the inviolability of the fundamental laws of the Kingdoms
+and Provinces represented in the Reichsrath and to rule in accordance
+with these and the common laws of the Empire.”
+
+The Oath taken by the present Emperor as King of Hungary:
+
+  “We, Francis Joseph I., by the Grace of God, etc., as Hereditary and
+  Apostolic King of Hungary and its Dependencies, swear by Almighty
+  God, by the Virgin Mary, and by all the Saints of God, to maintain
+  the Churches of God, the municipal liberties of Hungary and its
+  Dependencies, as well as the ecclesiastical and lay inhabitants of
+  those states of every rank, in their rights, prerogatives, freedom,
+  privileges, laws, in their ancient, good and approved customs; to see
+  that justice is done all: to maintain intact rights, constitution,
+  and the legal independence and territorial integrity of Hungary
+  and its Dependencies: to respect the laws of the late King Andreas
+  II., not to alienate nor curtail the dominion of Hungary and its
+  Dependencies, nor whatever belongs to these countries by right or
+  title, but as far as possible to increase and extend them; and that
+  we will do all that we are justly able to do for the common welfare,
+  glory, and increase of these countries. So help us God and all His
+  Saints.”
+
+A statute of 1910, the Accession Declaration Act, “to alter the form
+of the Declaration required to be made by the Sovereign on Accession,”
+provides for the use of the following Oath by the King:--
+
+  “I (_here insert the name of the Sovereign_) do solemnly and
+  sincerely in the presence of God profess, testify, and declare that
+  I am a faithful Protestant, and that I will, according to the true
+  intent of the enactments which secure the Protestant succession to
+  the Throne of my Realm, uphold and maintain the said enactments to
+  the best of my powers according to law.”
+
+It is not uninteresting to learn the official position of the Sovereign
+as defined by statute (24 Henry VIII. c. 12.):
+
+  “Whereby divers sundry old authentic histories and chronicles, it
+  is manifestly declared and expressed that this realm of England
+  is an empire, and so hath been accepted in the world, governed by
+  one supreme head and King, having dignity and royal estate of the
+  Imperial Crown of the same:
+
+  “Unto whom a Body Politic, compact of all sorts and degrees of
+  people, divided in terms by names of spiritualty and temporalty, been
+  bounden and owen to bear, next to God, a natural and humble obedience.
+
+  “He being also institute and furnished by the goodness and suffrance
+  of Almighty God with plenary, whole, and entire power, pre-eminence,
+  authority, prerogative, and jurisdiction, to render and yield
+  justice and final determination to all manner of folk, resiants or
+  subjects within this his realm, in all causes, matters, debates, and
+  contentions happening to occur, insurge, or begin within the limits
+  thereof, without restraint or provocation to any foreign princes or
+  potentates of the world.”
+
+The monarch--Henry VIII.--in whose reign the above was passed swore a
+Coronation Oath[36] little different to the Oaths of Charles II. and
+James II., though the Reformation came in between. The Oath taken by
+Charles II. at his Coronation was worded thus:--
+
+  “Sir, will you grant and keep, and by your oath confirm to the
+  people of England, the laws and customs to them granted by the Kings
+  of England your lawful and religious predecessors, and namely the
+  laws, customs, and franchises, granted by the glorious King, St.
+  Edward, your predecessor, according to the laws of God, the true
+  profession of the Gospel established in this Kingdom, agreeable to
+  the prerogative of the Kings thereof, and the ancient customs of this
+  realm?”
+
+  _King_: “I grant and promise to keep them.”
+
+  “Sir, will you keep peace and godly agreement (according to your
+  power) both to God, Holy Church, the clergy, and the people?”
+
+  _King_: “I will keep it.”
+
+  “Sir, will you (to your power) cause law, justice, and discretion in
+  mercy and truth to be executed to your judgment?”
+
+  _King_: “I will.”
+
+  “Sir, will you grant to hold and keep the laws and rightful customs
+  which the commonalty of this your Kingdom have: will you defend and
+  uphold them to the honour of God, so much as you lieth?”
+
+  _King_: “I grant and promise so to do.”
+
+The Coronation Oath of His Majesty King George V.[37] conformed to the
+requirements of the William and Mary legislation--which has regulated
+the subject ever since its passage, with trifling variations.
+
+The late King’s Accession Declaration, which gave religious offence
+to many of his Majesty’s subjects, has been abated, in pursuance of
+section 1, Accession Declaration Act, 1910.
+
+“The declaration to be made, subscribed, and audibly repeated by the
+Sovereign under section 1 of the Bill of Rights and section 2 of the
+Act of Settlement shall be that set out in the Schedule to this Act
+instead of that referred to in the said sections.”[38]
+
+
+FOOTNOTES
+
+[36] CORONATION OATH OF HENRY VIII
+
+  “Will ye graunte and kepe to the people of England, the lawes and
+  the custumes to theym, as of old tyme rightfull and deuoute Kings
+  graunted, and the same ratefye and conserne by your othe and the
+  spiritual lawes, custumes, and libertees graunted to the clergy and
+  people by your noble predecessors and glorious King Seint Edward?”
+
+  _The King shall answer_: “I graunte and promytte.”
+
+  “Ye shall kepe after your strength and power to the Church of God, to
+  the clergy and the people, hoole pees and goodely concorde.”
+
+  _The King shall answer_: “I shall kepe.”
+
+  “Ye shall make to be done after your strength and power equall and
+  rightfull justice in all your Domes and Judgements, and discrecion
+  with mercy and trouthe.”
+
+  _The King shall answer_: “I will do.”
+
+  “Do ye graunte the rightfull lawes and custumes to be holden, and
+  promytte after your strength and power such lawes, as to the honor
+  of God shall be chosen by your people, by you to be strengthend and
+  defended?”
+
+  _The King shall answer_: “I graunte and promytte.”
+
+[37] See Appendix F.
+
+[38] _Vide supra._
+
+
+
+
+APPENDIX A
+
+DIVORCE
+
+
+The following extracts from the evidence of Earl Russell and from the
+evidence of Mr. Atherley-Jones, K.C., before the Divorce Commission
+(December 19th, 1910), are not without some interest. They were
+discovered in _The Times_ report by accident, after the present
+author’s chapter on divorce had been written.
+
+  “Lord Russell, who was the first witness, said he had been interested
+  in the question of divorce since 1890. He had studied the history of
+  the question, the earlier part of which was naturally ecclesiastical;
+  but as Parliament, in his opinion, was not concerned in legislation
+  with ecclesiastical views he did not propose to go into them. In
+  his view the State had no more right to dictate to him or his
+  fellow-citizens what should be the nature of contracts of marriage
+  from an ecclesiastical point of view than it had to deal with the
+  education of his children, with the exercise of the franchise, or
+  with other matters from an ecclesiastical point of view.
+
+  “The existing law suffered from three great defects:--
+
+  “(1) The premium placed upon adultery and the advantages given to
+  those who are willing to commit it: (2) the practical denial of
+  divorce to the poor; and (3) the provision of an illusory remedy in
+  many cases of matrimonial hardship, such remedy itself being directly
+  provocative of further adultery. In the case of the poor, the
+  petitioner might be in law fully entitled to his remedy, but unless
+  he could find a sum varying from £30 to £70 he must go without. This
+  sum to be spent in one lump was probably out of reach of four-fifths
+  of the husbands and nine-tenths of the wives of the country. The
+  proceeding _in formâ papueris_ did not adequately meet the case. To
+  his mind the obvious remedy was to give jurisdiction to the County
+  Courts, manned by able Judges who habitually tried cases infinitely
+  more difficult than those of divorce. In the vast majority of cases
+  the evidence would be in the locality of the County Court, thus
+  reducing the expense of witnesses. He supposed there should be some
+  limit of income--say £500 a year--and he thought it would be fair to
+  prohibit a petitioner in the County Court from seeking damages.
+
+  “The remedy of judicial separation had been extended and kept alive
+  to satisfy the feeling that something ought to be done to protect the
+  feelings of husbands and wives while not offending the ecclesiastical
+  conscience. To his mind, JUDICIAL SEPARATION WAS A WICKED PROVISION
+  OF THE LAW, WITH A VERY HIGH PROBABILITY OF ADULTERY BY THE SEPARATED
+  PARTIES.
+
+  “The vexed question of divorce appeared to have slumbered for about
+  50 years. In May, 1902, he introduced a Bill in the House of Lords to
+  increase the causes for divorce, to assimilate the practice of the
+  Divorce Court to some extent to that of other divisions of the High
+  Court, TO RELIEVE POOR PEOPLE BY ENABLING THEM TO BRING THEIR SUITS
+  IN THE COUNTY COURT, and TO PROVIDE FOR LEGITIMATION BY SUBSEQUENT
+  MARRIAGE and for marriage with the deceased wife’s sister, afterwards
+  dealt with in a separate Bill.
+
+  “_The Chairman._--Would you recapitulate the grounds which you then
+  proposed?
+
+  “The witness said the grounds, in addition to adultery, were:--That
+  since the marriage the other party to the marriage has been guilty of
+  cruelty to the petitioner; that the other party to the marriage is
+  undergoing penal servitude for a term of not less than three years;
+  that the other party to the marriage has during the year preceding
+  the presentation of the petition been found or certified to be of
+  unsound mind under the Lunacy Act, 1890; that during the three
+  years preceding the presentation of the petition the parties to the
+  marriage have lived apart, and that throughout that period either of
+  the parties did not intend to resume cohabitation; that during the
+  year preceding the presentation of the petition the parties to the
+  marriage have lived apart, and that the other party concurs in the
+  petition.
+
+  “He introduced three other Bills on a smaller scale providing for
+  divorce in the case of desertion in 1903, 1905, and 1906. The first
+  and second were unanimously rejected; three voted for the third; the
+  Government whips told against the fourth, and it therefore received
+  no support.
+
+  “There was much to object to in the procedure of the Divorce Court.
+  He had heard no particular reason why pleadings in the Divorce Court
+  should be sworn to, but if it was agreed that people were thereby
+  debarred from launching baseless charges there was something to be
+  said for it. It ought not to be necessary to swear a jury where the
+  damages were agreed. The practice by which a wife could accuse a
+  woman of adultery and the Court could find her guilty without the
+  woman having notice of the proceedings or an opportunity of being
+  heard was indefensible. He thought only the decrees of the Court
+  with the names of the parties should be published. The suggestion
+  that publicity was a deterrent was open to a good deal of doubt. It
+  was a great hardship for a man or woman that all the details of an
+  unsuccessful charge of adultery should be published. Even though
+  acquitted, the damage done was irremediable. There was a growing
+  tendency on the part of certain newspapers to treat the Divorce Court
+  as the fountain head of sensational news.
+
+  “In considering legislation he refused to have regard to the
+  religious views of particular sects. He admitted marriage to be a
+  contract which affected not only the two parties to it, but the
+  community, and he considered that the community was bound to have
+  regard to the moral tendency of the marriage and divorce law and to
+  the interests of the children. Such expressions as ‘the sanctity
+  of marriage’ and “the sanctity of the home,” often used in this
+  connection, he regarded as having no particular meaning in the case
+  of adulterous homes or establishments where husband and wife had
+  long been separated. He suggested, therefore, that the test which
+  should be applied was whether any of the attributes of marriage
+  were still in existence between husband and wife. Where the spouses
+  had been separated for a term of years; where children had already
+  made their home with one or the other; and where no element of the
+  marriage tie remained except some financial relations and the legal
+  bond, he suggested that the law should step in, and, recognizing
+  the existing state of things, should sever the legal bond and
+  leave the parties free to create new homes. Since the decision of
+  “Jackson _v._ Jackson” the wife might leave her husband at the church
+  door, and unless one or other of the parties took advantage of the
+  privileges which the law reserved for adulterers, they would both
+  remain compulsory celibates for the rest of their lives. He still
+  thought the ideal state of the law would be that set out in the Bill
+  he presented to the House of Lords in 1902. English legislation,
+  however, always proceeded by piecemeal tentative advances, and
+  probably, therefore, the simplest form of legislation would involve
+  four advances:--(_a_) Equality of the sexes; (_b_) insanity a ground
+  of separation; (_c_) all judicial separation to be capable of being
+  turned into divorce _a vinculo_ on the motion of either party at the
+  expiration of two years; and (_d_) County Court jurisdiction.
+
+  “_Judge Tindal Atkinson._--Would you give no damages against the
+  co-respondent?
+
+  “_The Witness._--I think it rather a barbarous custom.
+
+  “Then you leave the co-respondent without punishment?--I do not think
+  you leave him without punishment. He has social exposure. I think it
+  is more desirable to give no damages than to suggest that a man can
+  get another’s wife by paying for her.
+
+  “In reply to Mr. Burt, the witness said he did not think the Assize
+  Courts a good alternative to the County Courts.”
+
+
+EVIDENCE OF MR. ATHERLEY-JONES.
+
+Mr. Atherley-Jones, K.C., M.P., said he prepared a Bill some years
+ago dealing with divorce. He came to the conclusion that subject
+to limitations the conditions which now enabled a person to obtain
+judicial separation should thenceforward be able to obtain divorce _a
+vinculo_. His view was that jurisdiction over certain areas might be
+conferred upon Judges selected from the County Courts.
+
+
+
+
+APPENDIX B
+
+CORONERS
+
+
+The functions of a coroner are not, of course, peculiarly confined
+to death inquisitions. They extend to inquiries in connection with
+treasure trove, though the infrequency of such inquiries naturally
+helps to obscure the coroner’s dual _rôle_ from the general public. The
+following paragraph supplies a recent instance of an inquiry in respect
+of treasure trove:
+
+  AN INQUEST ON COINS
+
+  “The coroner for the Thorpe division of Suffolk is to hold an inquest
+  to decide between two claims for the coins which were recently found
+  on the shore at Thorpeness, Suffolk. The Treasury claim them as
+  buried treasure, and the Receiver of Wrecks claims them as having
+  been washed ashore.
+
+  “Two black cinerary urns containing bones, a red earthenware Roman
+  vessel, and a black earthenware vessel, barrel-shaped and of drinking
+  tumbler size, were discovered on Saturday. It is thought that the
+  site of an old Roman burial-ground has been found. Throughout
+  yesterday hundreds of people visited Thorpeness on foot and by cycle,
+  in motorcars, and on horseback.”--_Daily Mail_, April 10th, 1911.
+
+       *       *       *       *       *
+
+The senseless character, which a coroner’s inquest can sometimes
+assume, is well brought out in a South American mummy case of a dozen
+years ago:
+
+  “This institution”--the office of the coroner--“which some affect
+  to consider moribund, seems on the contrary to exhibit both the fire
+  of youth and the dignity of old age; see the South American mummy
+  case (Aitken _v._ London and North Western Railway, _The Times_,
+  December 11, 1901). This was an action against the railway company
+  for damages for negligence in the carriage of a Peruvian mummy,
+  which was broken in transit from South America to Belgium. In April,
+  1899, the package, sent from Liverpool, and addressed to ‘Maison
+  de Melle, Belgium,’ had been opened at Broad Street. An inquest
+  was held--verdict, ‘That the woman was found dead at the railway
+  goods-station on April 15, and did die on some date unknown in some
+  foreign country, probably South America, from some cause unknown.
+  No proofs of a violent death are found. The body has been dried and
+  buried in some foreign manner, probably sun-dried and cave-buried,
+  and the jurors are satisfied that this body does not show any recent
+  crime in this country, and that the deceased was unknown and about
+  twenty-five years of age.’” (Mr. A. T. Carter, D.C.L.).
+
+       *       *       *       *       *
+
+An interesting fiction, connected with death, at any rate, if not with
+coroners, though at a somewhat later period it would have come within
+their cognizance, arose through the provisions of William the Conqueror
+for the protection of his Norman followers. For every one killed, a
+fine was imposed upon the hundred in which the body was found. By the
+reign of Henry I., every dead man was presumed to be French, unless his
+Englishry could be proved.
+
+  “A very neat doctrine for Revenue purposes, as the records show, for
+  if a stranger is found dead, who can prove that he is English?” (Mr.
+  A. T. Carter, D.C.L.).
+
+       *       *       *       *       *
+
+The following newspaper report merits some further publicity:
+
+  “At an inquest at Southwark, the need of an early operation in
+  urgent circumstances was emphasised, and a doctor urged that the
+  time had come for a reform of the law which makes it impossible to
+  undertake any operation on a grievously injured child until its
+  parents have been approached, persuaded, and their consent wrung from
+  them.... A schoolboy of nine, John Joseph Huggins, of Haddon House,
+  St. George’s Road, had been riding behind a van, according to the
+  account of another small boy, and had fallen off before another van,
+  of which a wheel had passed over his leg.
+
+  “Dr. Fritz Kahlenberg, of Guy’s Hospital, said that when the father
+  was told that an operation was necessary he demurred for some time,
+  but eventually gave his consent. The witness thought doctors should
+  be able to operate if it was absolutely necessary without waiting
+  for consent. Time was everything in many cases, and if consent had
+  first to be obtained a life might be sacrificed. At Guy’s Hospital
+  they endeavoured to get the parents’ consent, and, failing the
+  parents, the nearest of kin. Some ignorant people had an idea that
+  an operation was an experiment, made for the doctors’ amusement. In
+  this case the operation was performed at night, and the surgeons were
+  engaged until five in the morning.
+
+  “Asked by the coroner whether he had any suggestion to make, Dr.
+  Kahlenberg said he thought that in such cases it should be enough if
+  two or three doctors agreed on the necessity of an operation.
+
+  “The Coroner said that perhaps some members of Parliament would take
+  the matter up. Dr. Kahlenberg, he observed, was suggesting a very
+  serious change in the law.
+
+  “The inquiry was adjourned to enable the father to find witnesses of
+  his son’s accident.”
+
+
+
+
+APPENDIX C
+
+THE ROYAL MARRIAGES ACT, 1772 12 Geo. 3, c. 11
+
+_An Act for the better regulating of the future Marriages of the Royal
+Family_
+
+
+MOST GRACIOUS SOVEREIGN,
+
+Whereas your Majesty, from paternal affection to your own family,
+and from your royal concern for the future welfare of your people,
+and the honour and dignity of your crown, was graciously pleased to
+recommend to your Parliament to take into their serious consideration,
+whether it might not be wise and expedient to supply the defect of
+the laws now in being, and by some new provision more effectually to
+guard the descendants of his late Majesty King George the Second (other
+than the issue of princesses who have married, or who may hereafter
+marry, into foreign families), from marrying without the approbation
+of your Majesty, your heirs and successors, first had and obtained,
+we have taken this weighty matter into our serious consideration; and
+being sensible that marriages in the royal family are of the highest
+importance to the state, and that therefore the kings of this realm
+have ever been entrusted with the care and approbation thereof, and
+being thoroughly convinced of the wisdom and expediency of what your
+Majesty has thought fit to recommend upon this occasion; we, your
+Majesty’s most dutiful and loyal subjects, the lords spiritual and
+temporal, and commons, in this present Parliament assembled, do humbly
+beseech your Majesty that it may be enacted and be it enacted, etc.
+
+1. No descendant of the body of his late Majesty King George the
+Second, male or female (other than the issue of princesses who have
+married, or may hereafter marry, into foreign families), shall be
+capable of contracting matrimony, without the previous consent of his
+Majesty, his heirs or successors, signified under the great seal and
+declared in council (which consent, to preserve the memory thereof, is
+hereby directed to be set out in the license and register of marriage,
+and to be entered in the books of the Privy Council); and [that] every
+marriage or matrimonial contract, of any such descendant, without such
+consent first had and obtained, shall be null and void to all intents
+and purposes whatsoever.
+
+2. Provided always ... that in case any such descendant of the body
+of his late Majesty King George the Second, being above the age of
+twenty-five years, shall persist in his or her resolution to contract
+a marriage disapproved of, or dissented from, by the King, his heirs
+or successors; that then such descendant, upon giving notice to the
+King’s Privy Council, which notice is hereby directed to be entered
+in the books thereof, may, at any time from the expiration of twelve
+calendar months after such notice given to the Privy Council as
+aforesaid, contract such marriage; and his or her marriage with the
+person before proposed, and rejected, may be duly solemnized, without
+the previous consent of his Majesty, his heirs or successors; and such
+marriage shall be as good, as if this Act had never been made, unless
+both Houses of Parliament shall, before the expiration of the said
+twelve months, expressly declare their disapprobation of such intended
+marriage.
+
+3. And ... every person who shall knowingly and wilfully presume to
+solemnize or to assist or be present at the celebration of any marriage
+with any such descendant, or in his or her making any matrimonial
+contract, without such consent as aforesaid first had and obtained,
+except in the case above mentioned, shall being duly convicted thereof,
+incur and suffer the pains and penalties ordained and provided by the
+Statute of Provision and Premunire made in the sixteenth year of the
+reign of King Richard the Second.
+
+
+
+
+APPENDIX D
+
+EXECUTIONS
+
+
+The accompanying letter from Mr. A. Chichele Plowden, one of the
+Metropolitan Police Magistrates, appeared in _The Times_ for December
+20, 1910.
+
+  EXECUTIONS
+
+  _To the Editor of The Times_
+
+  SIR,--The interesting letters which have lately appeared in
+  your columns on the above subject were bound sooner or later
+  to resolve themselves into the one question of really national
+  importance--_viz._, whether or not capital punishment by hanging is
+  to be the last word of our civilization in dealing with the crime of
+  murder.
+
+  It is to the credit of Sir Henry Smith, whose letter you published
+  on Friday, that he is quick to recognize that this is the only thing
+  that signifies. Nor can it be said that there is any ambiguity
+  whatever in his own views on the subject.
+
+  Sir Henry is quite clear that all sympathy with murderers, even
+  in exceptional cases where they “suffer terribly,” is thrown away.
+  Generally speaking, they suffer very little--less than many innocent
+  people who die in their beds. Nevertheless the rope remains as the
+  great deterrent. The rope it is that is anticipated with terror.
+
+  If this is, as I believe it to be, a correct summary of Sir Henry’s
+  views, perhaps you will allow me, as a confirmed disbeliever in the
+  efficacy of capital punishment, to make one or two comments, not the
+  less true because they must often have been made before. People,
+  of course, are at liberty to think and believe that there would be
+  more murders than there are if hanging were abolished; but except
+  from analogy with foreign countries, notably, perhaps, with France,
+  where capital punishment, after being abolished, has recently been
+  restored, there is absolutely no evidence, nor in the nature of
+  things can there be any, to show that the rope is a deterrent.
+
+  If there are any whom the fear of it has deterred from murder,
+  they are and must remain an unknown quantity. All we know, as
+  distinguished from conjecture, is that crimes for which capital
+  punishment used to be the penalty have sensibly diminished, and that
+  murders continue to afflict society in quite sufficient numbers to
+  unnerve the more timid members of the community--the fear of death
+  notwithstanding.
+
+  It is a popular fallacy to regard a murderer as the worst of
+  criminals. The real truth is that in many cases it is hardly fair to
+  describe him as a criminal at all. There is nothing inconsistent,
+  human nature being what it is, in a man of blameless antecedents
+  being driven in a moment of frenzy into committing an act of violence
+  from which his whole soul would recoil in his saner moments.
+
+  No one who has not been through the fire can tell what may be the
+  effect on his self-control of a long course of studied insults and
+  provocation on the part of a worthless wife against her husband
+  persevered in day by day, for months and even years at a stretch.
+
+  Sir Henry Smith, in his virtuous indignation with Crippen, makes no
+  allowance for desperate circumstances like these. He is angry with
+  Crippen on account of his coolness in the witness-box, which he calls
+  an outrage, and he apparently regards it as a distinct aggravation
+  of his conduct that he should have sworn to love and cherish at the
+  altar the wife whom he subsequently put to death.
+
+  It is somewhat amazing to me that considerations such as these should
+  weigh for a moment in any just appreciation of Crippen’s character.
+
+  They seem to me absolutely irrelevant.
+
+  What Crippen actually did, and for which he suffered death, was to
+  kill a wife whom he hated for the sake of a woman whom he loved.
+  Probably of all the murders that are committed under the sun, in one
+  country or another, there is no more common type of murder than this.
+
+  It was the irony of Crippen’s fate that he did not meet No. 2 until
+  after he had met No. 1. Had such been his good fortune he would
+  probably have lived a life not better nor worse than his neighbours,
+  and have enjoyed with the best of them the reputation of a contented,
+  law-abiding citizen.
+
+  It must not be supposed from these observations that, the law of the
+  land being what it is, Crippen deserved a lesser punishment than he
+  received. All I am concerned with is to dispute that any fear of his
+  fate by hanging had any effect on his mind or intentions when he
+  resolved upon the murder of his wife.
+
+  It is quite clear that the deterrent effect was _nil_, as it was
+  in the case of Dickman, of Cream, and the host of other murderers,
+  who, with a full appreciation that they may ultimately be hung,
+  have nevertheless not hesitated to do away with the lives of their
+  victims, and to run the risk.
+
+  I am convinced from such experience as I have had of Criminal Courts,
+  extending over many years, that what a man murderously inclined
+  really dreads is not death, but pain.
+
+  The spectre of death, though it can always be conjured up, is too
+  remote and shadowy to have much effect on the nerves of a man in the
+  enjoyment of a full and vigorous health. Not so with pain. There is
+  no imagination so dull that it cannot take in the terrors of the
+  “cat;” and I believe if such a punishment could be made part of the
+  sentence, even without abolishing capital punishment, the deterrent
+  effect would be unmistakable.
+
+  I think even Crippen’s courage, wonderful as it was, would have
+  quailed on that dark and wintry morning had he known that he would
+  have had to endure a flogging before he was hung. And had he been
+  asked which he feared most--the physical pain of the lash or the
+  death to follow--can any one doubt what his answer would have been?
+
+          I am, Sir, your obedient servant,
+                            A. CHICHELE PLOWDEN.
+
+    Marylebone Police Court.
+
+       *       *       *       *       *
+
+“The Home Secretary states in a printed reply to Mr. Palmer that of the
+24 men and 4 women sentenced to death in 1910, 16 men were executed,
+as compared with 27 men and 4 women sentenced to death in 1909, 19 men
+being executed. In 1908, 23 men and 2 women were sentenced to death, 12
+men suffering the extreme penalty. One man sentenced to death in 1908
+was executed in 1909.” (_Daily Newspaper._)
+
+
+
+
+APPENDIX E
+
+AN ENGLISH LEGITIMATION BILL
+
+
+Since the chapter on legitimation was written, the writer has come
+across a House of Commons Bill, which substantially endorses his views
+on the subject. It is as follows:--
+
+  _A Bill to Amend the Law of Husband and Wife_
+  A.D. 1910
+
+  WHEREAS it is expedient to amend the law of husband and wife:
+
+  Be it therefore enacted by the King’s most Excellent Majesty, by and
+  with the advice and consent of the Lords Spiritual and Temporal, and
+  Commons, in this present Parliament assembled, and by the authority
+  of the same, as follows:--
+
+
+  _Power of wife to petition for divorce_
+
+  =1.= Notwithstanding anything in the Matrimonial Causes Act, 1857, or
+  any other Act contained, it shall be lawful for any wife to present
+  a petition to the Court praying that her marriage shall be dissolved
+  on the ground that since the celebration thereof her husband has been
+  guilty of adultery.
+
+  For the purposes of this section the expression “Court” shall mean
+  the Court for Divorce and Matrimonial Causes.
+
+
+  _Guardianship of children_
+
+  =2.= A wife shall be the joint guardian with her husband of any
+  children of the marriage, and, in every case arising under any
+  statute or otherwise, shall have an equal power with the husband in
+  any matter concerning their education, upbringing, or welfare.
+
+  In case of disagreement between the parties either party may apply
+  to the Court, who shall make such order as, having regard to all
+  the circumstances before it and to the general well-being of the
+  children, it shall think proper. There shall be no appeal from such
+  order except by leave of the Court, but the Court may at any time, at
+  the instance of either party, with or without hearing fresh evidence,
+  rescind or vary such order in such manner as it shall think proper.
+
+
+  _Children to be legitimised by marriage_
+
+  =3.= Marriage before and after _the passing of this Act_ shall
+  operate to legitimise any children previously born to the parties to
+  such marriage.
+
+  _Short Title_
+
+  =4.= This Act may be cited as the Marriage Law Amendment Act, 1910.
+
+
+
+
+APPENDIX F
+
+THE CRIMINAL APPEAL ACT, 1907
+
+COURT OF CRIMINAL APPEAL
+
+
+  =1.= (1) There shall be a Court of Criminal Appeal, and the Lord
+  Chief Justice of England and eight judges of the King’s Bench
+  Division of the High Court, appointed for the purpose by the Lord
+  Chief Justice with the consent of the Lord Chancellor for such period
+  as he thinks desirable in each case, shall be the judges of that
+  court.
+
+  (2) For the purpose of hearing and determining appeals under
+  this Act, and for the purpose of any other proceedings under this
+  Act, the Court of Criminal Appeal shall be summoned in accordance
+  with directions given by the Lord Chief Justice of England with
+  the consent of the Lord Chancellor and the court shall be duly
+  constituted if it consists of not less than three judges and of an
+  uneven number of judges.
+
+  If the Lord Chief Justice so directs, the court may sit in two or
+  more divisions.
+
+  The court shall sit in London except in cases where the Lord Chief
+  Justice gives special directions that it shall sit at some other
+  place.
+
+  (3) The Lord Chief Justice, if present, and in his absence the senior
+  member of the court, shall be president of the court.
+
+  (4) The determination of any question before the Court of Criminal
+  Appeal shall be according to the opinion of the majority of the
+  members of the court hearing the case.
+
+  (5) Unless the court direct to the contrary in cases where, in the
+  opinion of the court, the question is a question of law on which it
+  would be convenient that separate judgments should be pronounced
+  by the members of the court, the judgment of the court shall be
+  pronounced by the president of the court or such other member of the
+  court hearing the case as the president of the court directs, and no
+  judgment with respect to the determination of any question shall be
+  separately pronounced by any other member of the court.
+
+  [39](6) If in any case the director of public prosecutions
+  or the prosecutor or defendant obtains the certificate of the
+  Attorney-General that the decision of the Court of Criminal Appeal
+  involves a point of law of exceptional public importance, and that it
+  is desirable in the public interest that a further appeal should be
+  brought, he may appeal from that decision to the House of Lords, but
+  subject thereto the determination by the Court of Criminal Appeal of
+  any appeal or other matter which it has power to determine shall be
+  final, and no appeal shall lie from that court to any other court.
+
+  (7) The Court of Criminal Appeal shall be a superior court of record,
+  and shall, for the purposes of and subject to the provisions of this
+  Act, have full power to determine, in accordance with this Act, any
+  questions necessary to be determined for the purpose of doing justice
+  in the case before the court.
+
+  (8) Rules of court shall provide for securing sittings of the Court
+  of Criminal Appeal, if necessary, during vacation.
+
+  (9) Any direction which may be given by the Lord Chief Justice under
+  this section may, in the event of any vacancy in that office, or in
+  the event of the incapacity of the Lord Chief Justice to act from any
+  reason, be given by the senior judge of the Court of Criminal Appeal.
+
+  =2.= There shall be a Registrar of the Court of Criminal Appeal (in
+  this Act referred to as the Registrar) who shall be appointed by
+  the Lord Chief Justice from among the Masters of the Supreme Court
+  acting in the King’s Bench Division, and shall be entitled to such
+  additional salary (if any), and be provided with such additional
+  staff (if any), in respect of the office of registrar as the Lord
+  Chancellor, with the concurrence of the Treasury, may determine.
+
+  The senior Master of the Supreme Court shall be the first Registrar.
+
+  RIGHT OF APPEAL AND DETERMINATION OF APPEALS.
+
+  =3.= A person convicted on indictment may appeal under this Act to
+  the Court of Criminal Appeal--
+
+    (_a_) against a conviction on any ground of appeal which involves a
+          question of law alone, and
+
+    (_b_) with the leave of the Court of Criminal Appeal or upon the
+          certificate of the Judge who tried him that it is a fit case
+          for appeal against his conviction on any ground of appeal
+          which involves a question of fact alone, or a question of
+          mixed law and fact, or any other ground which appears to the
+          court to be a sufficient ground of appeal, and
+
+    (_c_) with the leave of the Court of Criminal Appeal against the
+          sentence passed on his conviction unless the sentence is one
+          fixed by law.
+
+  =4.= (1) The Court of Criminal Appeal on any such appeal against
+  conviction shall allow the appeal if they think that the verdict of
+  the jury should be set aside on the ground that it is unreasonable
+  or cannot be supported having regard to the evidence, or that the
+  judgment of the court before whom the appellant was convicted should
+  be set aside on the ground of a wrong decision of any question of
+  law, or that on any ground there was a miscarriage of justice, and in
+  any other case shall dismiss the appeal.
+
+  Provided that the court may, notwithstanding that they are of opinion
+  that the point raised in the appeal might be decided in favour of the
+  appellant, dismiss the appeal if they consider that no substantial
+  miscarriage of justice has occurred.
+
+  (2) Subject to the special provisions of this Act, the Court of
+  Criminal Appeal shall, if they allow an appeal against conviction,
+  quash the conviction and direct a judgment and verdict of acquittal
+  to be entered.
+
+  (3) On an appeal against sentence the Court of Criminal Appeal
+  shall, if they think that a different sentence should have been
+  passed, quash the sentence passed at the trial, and pass such other
+  sentence warranted in law by the verdict (whether more or less
+  severe) in substitution therefor as they think ought to have been
+  passed, and in any other case shall dismiss the appeal.
+
+  =5.= (1) If it appears to the Court of Criminal Appeal that an
+  appellant, though not properly convicted on some count or part of the
+  indictment, has been properly convicted on some other count or part
+  of the indictment, the court may either affirm the sentence passed
+  on the appellant at the trial, or pass such sentence in substitution
+  therefor as they think proper, and as may be warranted in law by the
+  verdict on the count or part of the indictment on which the court
+  consider that the appellant has been properly convicted.
+
+  (2) Where an appellant has been convicted of an offence and the jury
+  could on the indictment have found him guilty of some other offence,
+  and on the finding of the jury it appears to the Court of Criminal
+  Appeal that the jury must have been satisfied of the facts which
+  proved him guilty of that other offence, the court may, instead of
+  allowing or dismissing the appeal, substitute for the verdict found
+  by the jury a verdict of guilty of that other offence, and pass such
+  sentence in substitution for the sentence passed at the trial as may
+  be warranted in law for that other offence, not being a sentence of
+  greater severity.
+
+  (3) Where on the conviction of the appellant the jury have found
+  a special verdict, and the Court of Criminal Appeal consider that
+  a wrong conclusion has been arrived at by the court before which
+  the appellant has been convicted on the effect of that verdict, the
+  Court of Criminal Appeal may, instead of allowing the appeal, order
+  such conclusion to be recorded as appears to the court to be in law
+  required by the verdict, and pass such sentence in substitution for
+  the sentence passed at the trial as may be warranted in law.
+
+  (4) If on any appeal it appears to the Court of Criminal Appeal that,
+  although the appellant was guilty of the act or omission charged
+  against him, he was insane at the time the act was done or omission
+  made so as not to be responsible according to law for his actions,
+  the court may quash the sentence passed at the trial and order the
+  appellant to be kept in custody as a criminal lunatic under the Trial
+  of Lunatics Act, 1883, in the same manner as if a special verdict had
+  been found by the jury under that Act.
+
+  =6.= The operation of any order for the restitution of any property
+  to any person made on a conviction on indictment, and the operation
+  in case of any such conviction, of the provisions of subsection (1)
+  of section twenty-four of the Sale of Goods Act, 1893, as to the
+  re-vesting of the property in stolen goods on conviction, shall
+  (unless the Court before whom the conviction takes place direct to
+  the contrary in any case in which, in their opinion, the title to the
+  property is not in dispute) be suspended--
+
+    (_a_) in any case until the expiration of ten days after the date
+          of conviction, and
+
+    (_b_) in cases where notice of appeal or leave to appeal is given
+          within ten days after the date of conviction, until the
+          determination of the appeal;
+
+  and in cases where the operation of any such order, or the operation
+  of the said provisions, is suspended until the determination of the
+  appeal, the order or provisions, as the case may be, shall not take
+  effect as to the property in question if the conviction is quashed on
+  appeal. Provision may be made by rules of court for securing the safe
+  custody of any property, pending the suspension of the operation of
+  any such order of the said provisions.
+
+  (2) The Court of Criminal Appeal may by order annul or vary any order
+  made on a trial for the restitution of any property to any person,
+  although the conviction is not quashed; and the order, if annulled,
+  shall not take effect, and, if varied, shall take effect as so varied.
+
+
+  PROCEDURE
+
+  =7.= (1) Where a person convicted desires to appeal under this Act to
+  the Court of Criminal Appeal, or to obtain the leave of that Court to
+  appeal, he shall give notice of appeal or notice of his application
+  for leave to appeal in such manner as may be directed by rules of
+  court within ten days of the date of conviction. Such rules shall
+  enable any convicted person to present his case and his argument in
+  writing instead of by oral argument if he so desires. Any case or
+  argument so presented shall be considered by the court.
+
+  Except in the case of a conviction involving sentence of death, the
+  time within which notice of appeal or notice of an application for
+  leave to appeal may be given, may be extended at any time by the
+  Court of Criminal Appeal.
+
+  (2) In the case of a conviction involving sentence of death or
+  corporal punishment--
+
+    (_a_) the sentence shall not in any case be executed until after
+          the expiration of the time within which notice of appeal or
+          an application for leave to appeal may be given under this
+          section, and
+
+    (_b_) if notice is so given, the appeal or application shall
+          be heard and determined with as much expedition as
+          practicable, and the sentence shall not be executed until
+          after the determination of the appeal, or, in cases where an
+          application for leave to appeal is finally refused, of the
+          application.
+
+  =8.= The judge or chairman of any court before whom a person is
+  convicted shall, in the case of an appeal under this Act against the
+  conviction or against the sentence, or in the case of an application
+  for leave to appeal under this Act, furnish to the Registrar, in
+  accordance with rules of court, his notes of the trial; and shall
+  furnish to the Registrar in accordance with rules of court a report
+  giving his opinion upon the case or upon any point arising in the
+  case.
+
+  =9.= For the purposes of this Act, the Court of Criminal Appeal may,
+  if they think it necessary or expedient in the interest of justice,--
+
+    (_a_) order the production of any document, exhibit, or other thing
+          connected with the proceedings, the production of which
+          appears to them necessary for the determination of the case,
+          and
+
+    (_b_) if they think fit order any witnesses who would have been
+          compellable witnesses at the trial to attend and be examined
+          before the court, whether they were or were not called at
+          the trial, or order the examination of any such witnesses
+          to be conducted in manner provided by rules of court before
+          any judge of the court or before any officer of the court or
+          justice of the peace or other person appointed by the court
+          for the purpose, and allow the admission of any depositions
+          so taken as evidence before the court, and
+
+    (_c_) if they think fit receive the evidence, if tendered, of
+          any witness (including the appellant) who is a competent
+          but not compellable witness, and, if the appellant makes an
+          application for the purpose, of the husband or wife of the
+          appellant, in cases where the evidence of the husband or wife
+          could not have been given at the trial except on such an
+          application, and
+
+    (_d_) where any question arising on the appeal involves prolonged
+          examination of documents or accounts, or any scientific or
+          local investigation, which cannot in the opinion of the
+          court conveniently be conducted before the court, order
+          the reference of the question in manner provided by rules
+          of court for inquiry and report to a special commissioner
+          appointed by the court, and act upon the report of any such
+          commissioner so far as they think fit to adopt it, and
+
+    (_e_) appoint any person with special expert knowledge to act as
+          assessor to the court in any case where it appears to the
+          court that such special knowledge is required for the proper
+          determination of the case;
+
+  and exercise in relation to the proceedings of the court any other
+  powers which may for the time being be exercised by the Court of
+  Appeal on appeals in civil matters, and issue any warrants necessary
+  for enforcing the orders or sentences of the court: Provided that in
+  no case shall any sentence be increased by reason or in consideration
+  of any evidence that was not given at the trial.
+
+  =10.= The Court of Criminal Appeal may at any time assign to an
+  appellant a solicitor and counsel or counsel only in any appeal or
+  proceedings preliminary or incidental to an appeal in which, in
+  the opinion of the court, it appears desirable in the interests of
+  justice that the appellant should have legal aid, and that he has not
+  sufficient means to enable him to obtain that aid.
+
+  =11.= (1) An appellant, notwithstanding that he is in custody, shall
+  be entitled to be present, if he desires it, on the hearing of
+  his appeal, except where the appeal is on some ground involving a
+  question of law alone, but, in that case and on an application for
+  leave to appeal and on any proceedings preliminary or incidental to
+  an appeal, shall not be entitled to be present, except where rules of
+  court provide that he shall have the right to be present, or where
+  the court gives him leave to be present.
+
+  (2) The power of the court to pass any sentence under this Act may be
+  exercised notwithstanding that the appellant is for any reason not
+  present.
+
+  =12.= It shall be the duty of the Director of Public Prosecutions
+  to appear for the Crown on every appeal to the Court of Criminal
+  Appeal under this Act, except so far as the solicitor of a
+  Government department, or a private prosecutor in the case of a
+  private prosecution, undertakes the defence of the appeal, and the
+  Prosecution of Offences Act, 1879, shall apply as though the duty of
+  the Director of Public Prosecutions under this section were a duty
+  under section two of that Act, and provision shall be made by rules
+  of court for the transmission to the Director of Public Prosecutions
+  of all such documents, exhibits, and other things connected with the
+  proceedings as he may require for the purpose of his duties under
+  this section.
+
+  =13.= (1) On the hearing and determination of an appeal or any
+  proceedings preliminary or incidental thereto under this Act no costs
+  shall be allowed on either side.
+
+  (2) The expenses of any solicitor or counsel assigned to an
+  appellant under this Act, and the expenses of any witnesses attending
+  on the order of the court or examined in any proceedings incidental
+  to the appeal, and of the appearance of an appellant on the hearing
+  of his appeal or on any proceedings preliminary or incidental to
+  the appeal, and all expenses of and incidental to any examination
+  of witnesses conducted by any person appointed by the court for the
+  purpose, or any reference of a question to a special commissioner
+  appointed by the court, or of any person appointed as assessor to the
+  court, shall be defrayed, up to an amount allowed by the court, but
+  subject to any regulations as to rates and scales of payment made
+  by the Secretary of State, in the same manner as the expenses of a
+  prosecution in cases of felony.
+
+  =14.= (1) An appellant who is not admitted to bail shall, pending
+  the determination of his appeal, be treated in such manner as may be
+  directed by prison rules within the meaning of the Prison Act, 1898.
+
+  (2) The Court of Criminal Appeal may, if it seems fit, on the
+  application of an appellant, admit the appellant to bail pending the
+  determination of his appeal.
+
+  (3) The time during which an appellant, pending the determination of
+  his appeal, is admitted to bail, and subject to any directions which
+  the Court of Criminal Appeal may give to the contrary on any appeal,
+  the time during which the appellant, if in custody, is specially
+  treated as an appellant under this section, shall not count as part
+  of any term of imprisonment or penal servitude under his sentence,
+  and, in the case of an appeal under this Act, any imprisonment or
+  penal servitude under the sentence, of the appellant, whether it is
+  the sentence passed by the court of trial or the sentence passed by
+  the Court of Criminal Appeal, shall, subject to any directions which
+  may be given by the Court as aforesaid, be deemed to be resumed or to
+  begin to run, as the case requires, if the appellant is in custody,
+  as from the day on which the appeal is determined, and, if he is not
+  in custody, as from the day on which he is received into prison under
+  the sentence.
+
+  (4) Where a case is stated under the Crown Cases Act, 1848, this
+  section shall apply to the person in relation to whose conviction the
+  case is stated as it applies to an appellant.
+
+  (5) Provision shall be made by prison rules within the meaning of
+  the Prison Act, 1898, for the manner in which an appellant, when in
+  custody, is to be brought to any place at which he is entitled to be
+  present for the purposes of this Act, or to any place to which the
+  Court of Criminal Appeal or any judge thereof may order him to be
+  taken for the purpose of any proceedings of that court, and for the
+  manner in which he is to be kept in custody while absent from prison
+  for the purpose; and an appellant whilst in custody in accordance
+  with those rules shall be deemed to be in legal custody.
+
+  =15.= (1) The registrar shall take all necessary steps for obtaining
+  a hearing under this Act of any appeals or applications, notice of
+  which is given to him under this Act, and shall obtain and lay before
+  the court in proper form all documents, exhibits, and other things
+  relating to the proceedings in the court before which the appellant
+  or applicant was tried which appear necessary for the proper
+  determination of the appeal or application.
+
+  (2) If it appears to the registrar that any notice of an appeal
+  against a conviction purporting to be on a ground of appeal which
+  involves a question of law alone does not show any substantial ground
+  of appeal, the registrar may refer the appeal to the court for
+  summary determination, and, where the case is so referred, the court
+  may, if they consider that the appeal is frivolous or vexatious, and
+  can be determined without adjourning the same for a full hearing,
+  dismiss the appeal summarily, without calling on any persons to
+  attend the hearing or to appear for the Crown thereon.
+
+  (3) Any documents, exhibits, or other things connected with the
+  proceedings on the trial of any person on indictment, who, if
+  convicted, is entitled or may be authorised to appeal under this Act,
+  shall be kept in the custody of the court of trial in accordance with
+  rules of court made for the purpose, for such time as may be provided
+  by the rules, and subject to such power as may be given by the rules
+  for the conditional release of any such documents, exhibits, or
+  things from that custody.
+
+  (4) The registrar shall furnish the necessary forms and instructions
+  in relation to notices of appeal or notices of application under
+  this Act to any person who demands the same, and to officers of
+  courts, governors of prisons, and such other officers or persons as
+  he thinks fit, and the governor of a prison shall cause those forms
+  and instructions to be placed at the disposal of prisoners desiring
+  to appeal or to make any application under this Act, and shall cause
+  any such notice given by a prisoner in his custody to be forwarded on
+  behalf of the prisoner to the registrar.
+
+  (5) The registrar shall report to the court or some judge thereof any
+  case in which it appears to him that, although no application has
+  been made for the purpose, a solicitor and counsel or counsel only
+  ought to be assigned to an appellant under the powers given to the
+  Court by this Act.
+
+  =16.= (1) Shorthand notes shall be taken of the proceedings at the
+  trial of any person on indictment who, if convicted, is entitled
+  or may be authorised to appeal under this Act, and, on any appeal
+  or application for leave to appeal, a transcript of the notes, or
+  any part thereof, shall be made if the registrar so directs, and
+  furnished to the registrar for the use of the Court of Criminal
+  Appeal or any judge thereof: Provided that a transcript shall be
+  furnished to any party interested upon the payment of such charges as
+  the Treasury may fix.
+
+  (2) The Secretary of State may also, if he thinks fit in any case,
+  direct a transcript of the shorthand notes to be made and furnished
+  to him for his use.
+
+  (3) The cost of taking any such shorthand notes, and of any
+  transcript where a transcript is directed to be made by the registrar
+  or by the Secretary of State, shall be defrayed, in accordance with
+  scales of payment fixed for the time being by the Treasury, out of
+  moneys provided by Parliament, and rules of court may make such
+  provision as is necessary for securing the accuracy of the notes to
+  be taken and for the verification of the transcript.
+
+  =17.= The powers of the Court of Criminal Appeal under this Act
+  to give leave to appeal, to extend the time within which notice
+  of appeal or of an application for leave to appeal may be given,
+  to assign legal aid to an appellant, to allow the appellant to be
+  present at any proceedings in cases where he is not entitled to be
+  present without leave, and to admit an appellant to bail, may be
+  exercised by any judge of the Court of Criminal Appeal in the same
+  manner as they may be exercised by the Court, and subject to the same
+  provisions; but, if the judge refuses an application on the part of
+  the appellant to exercise any such power in his favour, the appellant
+  shall be entitled to have the application determined by the Court of
+  Criminal Appeal as duly constituted for the hearing and determining
+  of appeals under this Act.
+
+  =18.= (1) Rules of court for the purposes of this Act shall be
+  made, subject to the approval of the Lord Chancellor, and so far
+  as the rules affect the governor or any other officer of a prison,
+  or any officer having the custody of an appellant, subject to the
+  approval also of the Secretary of State, by the Lord Chief Justice
+  and the judges of the Court of Criminal Appeal, or any three of such
+  judges, with the advice and assistance of the Committee hereinafter
+  mentioned. Rules so made may make provision with respect to any
+  matter for which provision is to be made under this Act by rules of
+  court, and may regulate generally the practice and procedure under
+  this Act, and the officers of any court before whom an appellant has
+  been convicted, and the governor or other officers of any prison
+  or other officer having the custody of an appellant and any other
+  officers or persons, shall comply with any requirements of those
+  rules so far as they affect those officers or persons, and compliance
+  with those rules may be enforced by order of the Court of Criminal
+  Appeal.
+
+  (2) The committee hereinbefore referred to shall consist of a
+  chairman of quarter sessions appointed by a Secretary of State, the
+  Permanent Under Secretary of State for the time being for the Home
+  Department, the Director of Public Prosecutions for the time being,
+  the Registrar of the Court of Criminal Appeal, and a clerk of assize,
+  and a clerk of the peace appointed by the Lord Chief Justice, and a
+  solicitor appointed by the President of the Law Society for the time
+  being, and a barrister appointed by the General Council of the Bar.
+  The term of office of any person who is a member of the Committee
+  by virtue of appointment shall be such as may be specified in the
+  appointment.
+
+  (3) Every rule under this Act shall be laid before each House of
+  Parliament forthwith, and, if any address is presented to His Majesty
+  by either House of Parliament within the next subsequent thirty days
+  on which the House has sat next after any such rule is laid before
+  it, praying that the rule may be annulled, His Majesty in Council
+  may annul the rule, and it shall thenceforth be void, but without
+  prejudice to the validity of anything previously done thereunder.
+
+
+  SUPPLEMENTAL
+
+  =19.= Nothing in this Act shall affect the prerogative of mercy, but
+  the Secretary of State on the consideration of any petition for the
+  exercise of His Majesty’s mercy, having reference to the conviction
+  of a person on indictment or to the sentence (other than sentence of
+  death) passed on a person so convicted, may, if he thinks fit, at any
+  time either--
+
+    (_a_) refer the whole case to the Court of Criminal Appeal, and
+          the case shall then be heard and determined by the Court
+          of Criminal Appeal as in the case of an appeal by a person
+          convicted, or
+
+    (_b_) if he desires the assistance of the Court of Criminal
+          Appeal on any point arising in the case with a view to the
+          determination of the petition, refer that point to the
+          Court of Criminal Appeal for their opinion thereon, and the
+          Court shall consider the point so referred and furnish the
+          Secretary of State with their opinion thereon accordingly.
+
+  =20.= (1) Writs of error, and the powers and practice now existing in
+  the High Court in respect of motions for new trials or the granting
+  thereof in criminal cases, are hereby abolished.
+
+  (2) This Act shall apply in the case of convictions on criminal
+  informations and coroners’ inquisitions and in cases where a person
+  is dealt with by a court of quarter sessions as an incorrigible
+  rogue under the Vagrancy Act, 1824, as it applies in the case of
+  convictions on indictments, but shall not apply in the case of
+  convictions on indictments or inquisitions charging any peer or
+  peeress, or other person claiming the privilege of peerage, with any
+  offence not now lawfully triable by a court of assize.
+
+  (3) Notwithstanding anything in any other Act, an appeal shall lie
+  from a conviction on indictment at common law in relation to the
+  non-repair or obstruction of any highway, public bridge, or navigable
+  river in whatever court the indictment is tried, in all respects
+  as though the conviction were a verdict in a civil action tried at
+  assize, and shall not lie under this Act.
+
+  (4) All jurisdiction and authority under the Crown Cases Act, 1848,
+  in relation to questions of law arising in criminal trials which is
+  transferred to the judges of the High Court by section forty-seven
+  of the Supreme Court of Judicature Act, 1873, shall be vested in the
+  Court of Criminal Appeal under this Act, and in any case where a
+  person convicted appeals under this Act against his conviction on any
+  ground of appeal which involves a question of law alone, the Court
+  of Criminal Appeal may, if they think fit, decide that the procedure
+  under the Crown Cases Act, 1848, as to the statement of a case should
+  be followed, and require a case to be stated accordingly under that
+  Act in the same manner as if a question of law had been reserved.
+
+  =21.= In this Act, unless the context otherwise requires--
+
+    The expression “appellant” includes a person who has been
+    convicted and desires to appeal under this Act, and
+
+    The expression “sentence” includes any order of the court made on
+    conviction with reference to the person convicted or his wife or
+    children, and any recommendation of the court as to the making
+    of an expulsion order in the case of a person convicted, and the
+    power of the Court of Criminal Appeal to pass a sentence includes a
+    power to make any such order of the court or recommendation, and a
+    recommendation so made by the Court of Criminal Appeal shall have
+    the same effect for the purposes of section three of the Aliens
+    Act, 1905, as the certificate and recommendation of the convicting
+    Court.
+
+  =22.= The Acts specified in the schedule of this Act are hereby
+  repealed to the extent mentioned in the third column of that schedule.
+
+  =23.= (1) This Act may be cited as the Criminal Appeal Act, 1907.
+
+  (2) This Act shall not extend to Scotland or Ireland.
+
+  (3) This Act shall apply to all persons convicted after the
+  eighteenth day of April, nineteen hundred and eight, but shall not
+  affect the rights, as respects appeal, of any persons convicted on or
+  before that date.
+
+(The enactments affected by the schedule of repeal are four in number,
+namely, the Treason Act, 1695, the Crown Cases Act, 1848, and the two
+Supreme Court of Judicature Acts of 1875, and 1881, respectively.)
+
+
+FOOTNOTE
+
+[39] It was under this section that the notorious murderer, S.
+Morrison, or Morris Stein, endeavoured to carry his appeal to the House
+of Lords, but the Attorney-General (Sir Rufus Isaacs) refused the
+necessary certificate.
+
+
+
+
+APPENDIX G
+
+THE CORONATION OATH OF KING GEORGE V
+
+
+The Coronation Oath of King George V. is identical with that of Queen
+Victoria save in respect of reference to the Church of Ireland:--
+
+  THE OATH
+
+  ¶ His Majesty having already on Monday, the 6th day of February,
+  1911, in the presence of the two Houses of Parliament, made and
+  signed the Declaration prescribed, the Archbishop shall, after the
+  Sermon is ended, go to the King, and standing before him, administer
+  the Coronation Oath, first asking the King,
+
+  Sir, is your Majesty willing to take the Oath?
+
+  ¶ And the King answering,
+
+  I am willing,
+
+  ¶ The Archbishop shall minister these questions; and the King, having
+  a book in his hands, shall answer each question severally as follows:
+
+  _Archbishop._ Will you solemnly promise and swear to govern the
+  people of this United Kingdom of _Great Britain_ and _Ireland_,
+  and the Dominions thereto belonging, according to the Statutes in
+  Parliament agreed on, and the respective Laws and Customs of the same?
+
+  _King._ I solemnly promise so to do.
+
+  _Archbishop._ Will you to your power cause Law and Justice, in Mercy,
+  to be executed in all your judgments?
+
+  _King._ I will.
+
+  _Archbishop._ Will you to the utmost of your power maintain the
+  Laws of God, the true profession of the Gospel, and the Prostestant
+  Reformed Religion established by law? And will you maintain and
+  preserve inviolably the settlement of the Church of _England_, and
+  the doctrine, worship, discipline, and government thereof, as by law
+  established in _England_? And will you preserve unto the Bishops
+  and Clergy of _England_, and to the Churches there committed to
+  their charge, all such rights and privileges, as by law do or shall
+  appertain to them, or any of them?
+
+  _King._ All this I promise to do.
+
+  [Sidenote: The Bible to be brought;]
+
+  ¶ Then the King arising out of his chair, supported as before, and
+  assisted by the Lord Great Chamberlain, the Sword of State being
+  carried before him, shall go to the Altar, and there being uncovered,
+  make his solemn Oath in the sight of all the people, to observe the
+  premisses: laying his right hand upon the Holy Gospel in the great
+  Bible (which was before carried in the Procession and is now brought
+  from the Altar by the Archbishop, and tendered to him as he kneels
+  upon the steps), saying these words:
+
+  The things which I have here before promised, I will perform, and
+  keep.
+
+  So help me God.
+
+  [Sidenote: And a silver Standish.]
+
+  ¶ Then the King shall kiss the Book, and sign the Oath.
+
+       *       *       *       *       *
+
+It is, perhaps, interesting to note that neither the Proclamation,
+Accession, Declaration, or Coronation, of a King in any way improves
+his legal kingship: he is King from the moment his predecessor’s life
+is extinct. Hence the legal saying, “The King never dies.” It was
+anomalous for certain official persons in the City of London to address
+his Majesty the King as “Prince,” in condoling with him on the death
+of King Edward VII., immediately after the event. It was likewise
+technically incorrect to refer to the decease of “the King of Portugal
+and of the Crown Prince”--at the time of the assassinations. The latter
+survived his father by a minute or so, and he, therefore, died a King.
+
+       *       *       *       *       *
+
+The accompanying paragraph from the _Coronation Service_, by the Rev.
+Joseph H. Pemberton, contains some information:
+
+  “As to the authority by which the Coronation Service is from time to
+  time revised. An order is made by the King in Council directing the
+  Archbishop of Canterbury to prepare a ‘Form and Order,’ due attention
+  being given to the wishes of the Sovereign on points of detail. But
+  the Archbishop has also a duty to perform to the Church, that nothing
+  shall be omitted which through many generations has been held as
+  essential to the validity of the Service, a Service by which, through
+  the administration of the outward and visible sign of Holy Unction,
+  the inward and spiritual grace of the Holy Spirit is conveyed to the
+  Sovereign for the office and work of a King or Queen in this realm
+  under the Catholic Church of Christ. For it cannot be too often
+  repeated in these days that the Coronation of a King is not a civil
+  ceremony, but a religious service, for the purpose of the setting
+  apart of a person for a particular and holy office. The King at his
+  Accession becomes the people’s accepted Sovereign, at his Coronation
+  he becomes the Lord’s Anointed, holding his divine office as the
+  representative, the agent, to the people of this realm, of the King
+  of kings and Lord of lords.”
+
+
+
+
+APPENDIX H
+
+THE POOR PRISONERS’ DEFENCE ACT, THE PERJURY BILL, AND THE CRIMINAL
+EVIDENCE ACT
+
+
+I. THE POOR PRISONERS’ DEFENCE ACT
+
+An extremely short enactment, interesting from several points of view,
+is that which deals with the defence of poor prisoners. In itself it
+is scarcely anomalous, though the necessity for a poor prisoner to
+satisfy the committing justices or the judge of a court of assize, or
+chairman of a court of quarter sessions that he, the prisoner, comes
+within the meaning of the Act, sometimes tends to produce difficulty
+and obstruction. The Act reads:--
+
+
+  AN ACT TO MAKE PROVISION FOR THE DEFENCE OF POOR PRISONERS.
+
+                                                   (14th August, 1903)
+
+  Be it enacted by the King’s most Excellent Majesty, by and with the
+  advice and consent of the Lords Spiritual and Temporal, and Commons,
+  in this present Parliament assembled, and by the authority of the
+  same, as follows:--
+
+  =1.= (1) Where it appears, having regard to the nature of the
+  defence set up by any poor prisoner, as disclosed in the evidence
+  given or statement made by him before the committing justices, that
+  it is desirable in the interests of justice that he should have legal
+  aid in the preparation and conduct of his defence, and that his means
+  are insufficient to enable him to obtain such aid--
+
+    (_a_) the committing justices, upon the committal of the prisoner
+          for trial, or
+
+    (_b_) the judge of a court of assize or chairman of a court of
+          quarter sessions, at any time after reading the depositions,
+
+  may certify that the prisoner ought to have such legal aid, and
+  thereupon the prisoner shall be entitled to have a solicitor and
+  counsel assigned to him, subject to the provisions of this Act.
+
+  (2) The expenses of the defence, including the cost of a copy of the
+  depositions, the fees of solicitor and counsel, and the expenses of
+  any witnesses shall be allowed and paid in the same manner as the
+  expenses of a prosecution in cases of indictment for felony, subject,
+  nevertheless, to any rules under this Act and to any regulations
+  as to rates or scales of payment which may be made by one of His
+  Majesty’s Principal Secretaries of State.
+
+  =2.= Rules for carrying this Act into effect may be made in the
+  same manner and subject to the same conditions as Rules under the
+  Prosecution of Offences Act, 1879.
+
+  =3.= In this Act--
+
+    “Prisoner” includes a person committed for trial on bail.
+
+    “Committing justices” includes a magistrate of the police courts of
+    the metropolis and a stipendiary magistrate.
+
+    “Chairman” includes recorder or deputy recorder or deputy chairman.
+
+  =4.= This Act shall not extend to Scotland or Ireland.
+
+  =5.= This Act may be cited as the Poor Prisoners’ Defence Act,
+  1903, and shall come into operation on the first day of January one
+  thousand nine hundred and four.
+
+The Act is straightforward and clear in its wording, but it seems to
+leave something unsaid in its provision for establishing the prisoner’s
+insufficiency of means to maintain his defence. The functionary who
+has to decide whether or not the prisoner’s poverty is genuine does
+not seem to be given any special standard by which to govern his
+decision. The responsibility of using public funds where there may be
+no real justification must influence him towards excessive caution.
+It would be better to make it perfectly plain what would constitute
+justification. A judge or quasi-judicial functionary, may be guided
+by his own intelligence, so far as he can apply it to the prisoner’s
+circumstances, but it may thus involve more time and consideration
+to arrive at a proper estimate of the truth than the case is worth.
+On the other hand, the prisoner and the police may, and probably do,
+conflict in their statements. What is to be done? There is no solution,
+unless it be, where the prisoner has got as far as quarter sessions or
+the assize, to set the man’s case back, pending the submission of an
+affidavit from a police officer deputed to make reasonable inquiry into
+the prisoner’s means and resources. Where there is no evidence of funds
+put by, an affidavit to this effect should satisfy the recorder, or
+judge, in the matter of providing for the defence. In a case where the
+prisoner requests legal aid in the police court, a similar principle
+could be applied. A police affidavit would be useful as a record.
+
+
+II. THE PERJURY BILL
+
+A short Bill “to consolidate and simplify the law relating to perjury
+and kindred offences,” to be known to future generations as the Perjury
+Act, 1911, has recently left the printer. Its sponsor is the Lord
+High Chancellor, and its provisions are not without interest to the
+general public. It is made up of nineteen clauses and a schedule. It
+is proposed to here transcribe it bodily. The Bill, after reciting the
+formula of Royal and Parliamentary enactment, runs as follows:--
+
+  =1.=--(1) If any person lawfully sworn as a witness or as an
+  interpreter in a judicial proceeding wilfully makes a statement
+  material in that proceeding, which he knows to be false or does not
+  believe to be true, he shall be guilty of perjury, and shall on
+  conviction thereof on indictment be liable to penal servitude for a
+  term not exceeding seven years, or to imprisonment with or without
+  hard labour for a term not exceeding two years, or to a fine or to
+  both such penal servitude or imprisonment and fine.
+
+  (2) The expression “judicial proceeding” includes a proceeding before
+  any court, tribunal, or person having by law power to hear, receive,
+  and examine evidence on oath.
+
+  (3) Where a statement made for the purposes of a judicial proceeding
+  is not made before the tribunal itself, but is made on oath before
+  a person authorised by law to administer an oath to the person who
+  makes the statement, and to record or authenticate the statement, it
+  shall for the purposes of this section be treated as having been made
+  in a judicial proceeding.
+
+  (4) A statement made by a person lawfully sworn in England or Ireland
+  for the purposes of a judicial proceeding--
+
+    (_a_) in another part of His Majesty’s dominions, or
+
+    (_b_) in a British tribunal lawfully constituted in any place by
+          sea or land outside His Majesty’s dominions, or
+
+    (_c_) in a tribunal of any foreign state,
+
+  shall for the purpose of this section be treated as a statement made
+  in a judicial proceeding in England or Ireland.
+
+  (5) Where for the purposes of a judicial proceeding in England or
+  Ireland, a person is lawfully sworn under the authority of an Act of
+  Parliament--
+
+    (_a_) in any other part of His Majesty’s dominions, or
+
+    (_b_) before a British tribunal or a British officer in a foreign
+    country, or within the jurisdiction of the Admiralty of England,
+
+  a statement made by such person so sworn as aforesaid (unless the
+  Act of Parliament under which it was made otherwise specifically
+  provides) shall be treated for the purposes of this section as having
+  been made in the judicial proceeding in England or Ireland for the
+  purposes whereof it was made.
+
+  (6) The question whether a statement on which perjury is assigned was
+  material is a question of law to be determined by the court of trial.
+
+  =2.= If any person--
+
+    (1) being required or authorised by law to make any statement on
+        oath for any purpose, and being lawfully sworn (otherwise than
+        in a judicial proceeding) wilfully makes a statement which is
+        material for that purpose and which he knows to be false or
+        does not believe to be true, or
+
+    (2) wilfully uses any false affidavit for the purposes of the Bill
+        of Sale Act, 1878, as amended by any subsequent enactment,
+
+  he shall be guilty of a misdemeanour, and on conviction thereof
+  on indictment shall be liable to penal servitude for a term not
+  exceeding seven years or to imprisonment, with or without hard
+  labour, for a term not exceeding two years, or to a fine or to both
+  such penal servitude or imprisonment and fine.
+
+  =3.= (1) If any person--
+
+    (_a_) for the purpose of procuring a marriage, or a certificate
+          or license for marriage, knowingly and wilfully makes a
+          false oath, or makes or signs a false declaration, notice or
+          certificate required under any Act of Parliament for the time
+          being in force relating to marriage, or
+
+    (_b_) knowingly and wilfully makes, or knowingly and wilfully
+          causes to be made, for the purpose of being inserted in any
+          register of marriage, a false statement as to any particular
+          required by law to be known and registered relating to any
+          marriage.
+
+    (_c_) forbids the issue of any certificate, or license for marriage
+          by falsely representing himself to be a person whose
+          consent to the marriage is required by law, knowing such
+          representation to be false,
+
+  he shall be guilty of a misdemeanour and on conviction thereof
+  on indictment shall be liable to penal servitude for a term not
+  exceeding seven years or to imprisonment, with or without hard
+  labour, for a term not exceeding two years, or to a fine or to both
+  such penal servitude or imprisonment and fine.
+
+  (2) No prosecution for knowingly and wilfully making a false
+  declaration for the purpose of procuring any marriage out of the
+  district in which the parties or one of them dwell shall take place
+  after the expiration of    months from the solemnization of the
+  marriage to which the declaration refers.
+
+  =4.= (1) If any person--
+
+    (_a_) wilfully makes any false answer to any question put to him by
+          any registrar of births or deaths relating to the particulars
+          required to be registered concerning any birth or death, or
+          wilfully gives to any such registrar any false information
+          concerning any birth or death or the cause of death, or
+
+    (_b_) wilfully makes any false certificate or declaration under
+          or for the purposes of any Act relating to the registration
+          of births or deaths, or knowing any such certificate or
+          declaration to be false, uses the same as true or gives or
+          sends the same as true to any person, or
+
+    (_c_) wilfully makes, gives or uses any false statement or
+          declaration as to a child born alive as having been
+          still-born, or as to the body of a deceased person or a
+          still-born child in any coffin, or falsely pretends that any
+          child born alive was still-born, or
+
+    (_d_) makes any false statement with intent to have the same
+          inserted in any register of births or deaths:
+
+  shall be guilty of a misdemeanour and shall be liable--
+
+     (i) on conviction thereof on indictment to penal servitude for a
+         term not exceeding seven years, or to imprisonment with or
+         without hard labour for a term not exceeding two years, or to
+         a fine instead of either of the said punishments; and
+
+    (ii) on summary conviction thereof to a penalty not exceeding ten
+         pounds:
+
+  (2) A prosecution on indictment for an offence against this section
+  shall not be commenced more than three years after the commission of
+  the offence.
+
+  =5.= If any person knowingly and wilfully makes (otherwise than on
+  oath) a statement false in a material particular, and the statement
+  is made--
+
+    (_a_) in a statutory declaration, or
+
+    (_b_) in an abstract account, balance sheet, book, certificate,
+          declaration, entry, estimate, inventory, notice, report,
+          return, or other document which is authorised or required to
+          make, attest, or verify, by (under or for the purposes of)
+          any public general Act of Parliament for the time being in
+          force, or
+
+    (_c_) in any oral declaration or oral answer which he is required
+          to make by (under or in pursuance of) any public general Act
+          of Parliament for the time being in force,
+
+  he shall be guilty of a misdemeanour and shall be liable on
+  conviction thereof on indictment to imprisonment with or without hard
+  labour, for any term not exceeding two years, or to a fine or to both
+  such imprisonment and fine.
+
+  =6.= If any person--
+
+    (_a_) procures or attempts to procure himself to be registered on
+          any register or roll kept under or in pursuance of any public
+          general Act of Parliament for the time being in force of
+          persons qualified by law to practise any vocation or calling,
+          or
+
+    (_b_) procures or attempts to procure a certificate of the
+          registration of any person on any such register or roll as
+          aforesaid,
+
+  by wilfully making or producing or causing to be made or produced
+  either verbally or in writing, any declaration, certificate, or
+  representation which he knows to be false or fraudulent, he shall be
+  guilty of a misdemeanour and shall be liable on conviction thereof on
+  indictment to imprisonment for any term not exceeding twelve months,
+  or to a fine, or to both such imprisonment and fine.
+
+  =7.= (1) Every person who aids, abets, counsels, procures, or suborns
+  another person to commit an offence against this Act shall be liable
+  to be proceeded against, indicted, tried and punished as if he were a
+  principal offender.
+
+  (2) Every person who incites or attempts to procure or suborn
+  another person to commit an offence against this Act shall be guilty
+  of a misdemeanour, and on conviction thereof on indictment shall be
+  liable to imprisonment, or to a fine, or to both such imprisonment
+  and fine.
+
+  =8.= Where an offence against this Act or any offence punishable as
+  perjury under any other Act of Parliament is committed in any place
+  either on sea or land outside the United Kingdom the offender may
+  be proceeded against, indicted, tried, and punished in any county
+  or place in England where he was apprehended or is in custody as if
+  the offence had been committed in that county or place; and for all
+  purposes incidental to or consequential on the trial or punishment of
+  the offence, it shall be deemed to have been committed in that county
+  or place.
+
+  =9.= (1) Where any of the following authorities, namely, a judge
+  of or person presiding in a court of record, or a petty sessional
+  court, or any justice of the peace sitting in special sessions, or
+  any sheriff or his lawful deputy before whom a writ of inquiry or
+  a writ of trial is executed is of opinion that any person has in
+  the course of a proceeding before that authority been guilty of
+  perjury, the authority may order the prosecution of that person
+  for such perjury in case there shall appear to be reasonable cause
+  for such prosecution and may commit him, or admit him to bail, to
+  take his trial at the proper court, and may require any person to
+  enter into a recognizance to prosecute or give evidence against the
+  person whose prosecution is so ordered, and may give the person so
+  bound to prosecute a certificate of the making of the order for the
+  prosecution, for which certificate no charge shall be made.
+
+  (2) An order made or a certificate given under this section shall be
+  given in evidence for the purpose or in the course of any trial or a
+  prosecution resulting therefrom.
+
+  =10.= A court of quarter sessions shall not have jurisdiction to try
+  an indictment for any offence against this Act, or for an offence
+  which under any enactment for the time being in force is declared
+  to be perjury or to be punishable as perjury, or as subornation of
+  perjury.
+
+  =11.= The provisions of the Vexatious Indictments Act, 1859, and the
+  Acts amending the same, shall apply in the case of any offence
+  punishable under this Act, and in the case of any offence which
+  under any other enactment for the time being in force, is declared
+  to be perjury or subornation of perjury or is made punishable as
+  perjury or as subordination of perjury, in like manner as if all the
+  said offences were enumerated in section one of the said Vexatious
+  Indictments Act, 1859: Provided that in that section a reference
+  to this Act shall be substituted for the reference therein to the
+  Criminal Procedure Act, 1851.
+
+  =12.= (1) In an indictment--
+
+    (_a_) for making any false statement or false representation
+          punishable under this Act, or
+
+    (_b_) for unlawfully, wilfully, falsely, fraudulently, deceitfully,
+          maliciously, or corruptly taking, making, signing, or
+          subscribing any oath, affirmation, solemn declaration,
+          statutory declaration, affidavit, deposition, notice,
+          certificate, or other writing,
+
+  it is sufficient to set forth the substance of the offence charged,
+  and before which court or person (if any) the offence was committed
+  without setting forth the proceedings or any part of the proceedings
+  in the course of which the offence was committed, and without setting
+  forth the authority of any court or person before whom the offence
+  was committed.
+
+  (2) In an indictment for aiding, abetting, counselling, suborning,
+  or procuring any other person to commit any offence hereinbefore in
+  this section mentioned, or for conspiring with any other person, or
+  with attempting to suborn or procure any other person, to commit any
+  such offence, it is sufficient--
+
+    (_a_) where such an offence has been committed, to allege that
+          offence, and then to allege that the defendant procured the
+          commission of that offence, and
+
+    (_b_) where such offence has not been committed, to set forth
+          the substance of the offence charged against the defendant
+          without setting forth any matter or thing which it is
+          unnecessary to aver in the case of an indictment for a false
+          statement or false representation punishable under this Act.
+
+  =13.= A person shall not be liable to be convicted of any offence
+  against this Act, or of any offence declared by any other Act to be
+  perjury or subornation of perjury or to be punishable as perjury or
+  subornation of perjury solely upon the evidence of one witness as to
+  the falsity of any statement alleged to be false.
+
+  =14.= On a prosecution
+
+    (_a_) for perjury alleged to have been committed on the trial of an
+          indictment for felony or misdemeanour, or
+
+    (_b_) for procuring or suborning the commission of perjury on any
+          such trial,
+
+  the fact of the former trial shall be sufficiently proved by the
+  production of a certificate containing the substance and effect
+  (omitting the formal parts) of the indictment and trial purporting
+  to be signed by the clerk of the court, or other person having the
+  custody of the records of the court where the indictment was tried,
+  or by the deputy of the clerk or other person, without proof of the
+  signature or official character of the clerk or person appearing to
+  have signed the certificate.
+
+  =15.= (1) For the purposes of this Act the forms and ceremonies used
+  in administering an oath are immaterial, if the court or person
+  before whom the oath is taken has power to administer an oath for
+  the purpose of verifying the statement in question, and if the oath
+  has been administered in a form and with ceremonies which the person
+  taking the oath has accepted without objection, or has declared to be
+  binding on him.
+
+  (2) In this Act--
+
+    The expression “oath” in the case of persons for the time being
+    allowed by law to affirm or declare instead of swearing, includes
+    “affirmation” and “declaration,” and the expression “swear” in the
+    like case includes “affirm” and “declare”; and
+
+    The expression “statutory declaration” means a declaration made
+    by virtue of the Statutory Declarations Act, 1835, or of any Act,
+    Order in Council, rule or regulation applying or extending the
+    provisions thereof; and
+
+    The expression “indictment” includes “criminal information.”
+
+  =16.= (1) Where the making of a false statement is not only an
+  offence under this Act, but also by virtue of some other Act is
+  a corrupt practice or subjects the offender to any forfeiture or
+  disqualification or to any penalty other than penal servitude, or
+  imprisonment, or fine, the liability of the offender under this Act
+  shall be in addition to and not in substitution for his liability
+  under such other Act.
+
+  (2) Nothing in this Act shall apply to a statement made without oath
+  by a child under the provisions of the Prevention of Cruelty to
+  Children Act, 1904, and the Children Act, 1908.
+
+  (3) Where the making of a false statement is by any other Act,
+  whether passed before or after the commencement of this Act, made
+  punishable on summary conviction proceedings may be taken either
+  under such other Act or under this Act:
+
+  Provided that where such an offence is by any Act passed before the
+  commencement of this Act, as originally enacted, made punishable only
+  on summary conviction, it shall remain only so punishable.
+
+  =17.= The enactments specified in the schedule of this Act are hereby
+  repealed, so far as they apply to England, to the extent specified in
+  the third column of that schedule.
+
+  =18.= This Act shall not extend to Scotland or Ireland.
+
+  =19.= This Act may be cited as the Perjury Act, 1911, and shall come
+  into operation on the first day of January, nineteen hundred and
+  twelve.
+
+The schedule attached to the new Bill--which comes to an end, so far as
+the provisions are concerned, with clause 19--repeals one hundred and
+thirty-two legislative measures, the first one to go, being 52 Hen. 8.
+c. 9.--“Agenst maintenance and embracery byeng of titles, etc.”
+
+The Perjury Bill promises to crush out many anomalous conditions, not
+the least of which are those connected with the facility afforded at
+present to the supply of false data to registrars of births and deaths,
+more particularly in respect to births. Under existing conditions, by a
+passive method of _suppressio veri_, as opposed to _expressio falsi_,
+the most grossly inaccurate entries may be recorded in the registers.
+For a person who voluntarily sets himself to speak what is false, there
+is no limit to the length to which he may go, without let or hindrance.
+By the force of the new Bill, this state of affairs will come to an
+abrupt and timely end. It is high time, too, for the records of England
+are filled with the most unwarrantable entries.
+
+Where two persons are cohabiting together as man and wife, and a
+child is born, the chances are the father, if he goes to record the
+birth, will merely be asked the maiden name of his wife. If he is a
+good-natured man, he may answer in all truth that her name was Joan
+Stuart, or whatever the name may be. He is not asked whether he _is_
+actually married in law, or when and where he _was_ married, nor what
+evidence he has to show that any marriage ever took place. Admittedly,
+the lack of insistence on the part of the authorities is benign in one
+way, but it leaves loop-holes for all sorts of abuses. The Perjury Bill
+threatens to stop them up.
+
+In sub-section (2), clause 5, of the Perjury Bill, there is the
+line, “after the expiration _of months_ from the solemnization of the
+marriage.” What “the expiration of months” means, Heaven only knows!
+Either by accident or intention an anomaly will be created unless
+His Majesty’s Stationery Office, or the Printers to the King’s Most
+Excellent Majesty, will assume responsibility and correct the error.
+As the Bill stands, “the expiration of months” may mean any number of
+months, which is grotesque on the face of it.
+
+
+III. THE CRIMINAL EVIDENCE ACT
+
+The Criminal Evidence Act, 1898, comes out of chronological order
+here, but it is none the worse for that. It might have been placed
+first of all, instead of granting precedence to the Poor Prisoners’
+Defence Act, 1903, though in the present arrangement of several short
+Acts of Parliament, various considerations have exercised the author.
+Then, too, for instance, the Perjury Bill, 1911, quite the newest
+thing in legislation, supplies a form of introduction to the Criminal
+Evidence Act, which has given great and uninterrupted scope to half
+a generation of liars. It is the constant complaint of judges that
+a criminal when giving evidence on his own behalf rarely tells the
+truth, or anything approaching the truth. Comment on the subject flows
+freely from the Bench, with every possible cause. If criminals were
+not allowed to “speak for themselves,” at least the occupants of the
+dock could tell no lies. Still, there are so many technical fictions
+permitted nowadays that one half expects a man to lie with _sang
+froid_, in an attempt to save his own skin. This is scarcely morality,
+but it is a practical and true way to look upon an evil which is akin
+to nature. On one of those rare occasions, when a murderer is caught
+red-handed, he will enter a plea of “Not Guilty,” as a matter of
+course. The plea is a fiction in itself, but an even greater one is to
+be found in the amendment or alteration of a plea of “Guilty” to “Not
+Guilty,” the most absurd anomaly sanctioned in the English courts, one
+due, it may be explained, to the tolerance of the judiciary.
+
+Owing to the shortness of the Criminal Evidence Act, and owing also
+to its clearness of meaning, it may here be inserted intact, without
+misgiving. It is made up of only seven brief sections, the first of
+which begins,
+
+  =1.= Every person charged with an offence, and the wife or husband,
+  as the case may be, of the person so charged, shall be a competent
+  witness for the defence at every stage of the proceedings, whether
+  the person so charged is charged solely or jointly with any other
+  person. Provided as follows:--
+
+    (_a_) a person so charged shall not be called as a witness in
+          pursuance of this Act except upon his own application.
+
+    (_b_) The failure of any person charged with an offence, or of
+          the wife or husband, as the case may be, of the person so
+          charged, to give evidence shall not be made the subject of
+          any comment by the prosecution.
+
+    (_c_) The wife or husband of the person charged shall not, save as
+          in this Act mentioned, be called as a witness in pursuance of
+          this Act except upon the application of the person so charged.
+
+    (_d_) Nothing in this Act shall make a husband compellable to
+          disclose any communication made to him by his wife during the
+          marriage, or a wife compellable to disclose any communication
+          made to her by her husband during the marriage.
+
+    (_e_) A person charged and being a witness in pursuance of
+          this Act may be asked any question in cross-examination
+          notwithstanding that it would tend to criminate him as to the
+          offence charged.
+
+    (_f_) A person charged and called as a witness in pursuance of
+          this Act shall not be asked, and if asked shall not be
+          required to answer, any question tending to show that he
+          has committed or been convicted of or been charged with any
+          offence other than that wherewith he is then charged, or is a
+          bad character, unless--
+
+            (i) the proof that he has committed or been convicted of
+                such other offence is admissible evidence to show
+                that he is guilty of the offence wherewith he is then
+                charged, or
+
+           (ii) he has personally or by his advocate asked questions
+                of the witnesses for the prosecution with a view to
+                establish his own good character, or has given evidence
+                of his good character, or the nature or conduct of
+                the defence is such as to involve imputations on the
+                character of the prosecutor or the witnesses for the
+                prosecution, or
+
+          (iii) he has given evidence against any other person charged
+                with the same offence.
+
+    (_g_) Every person called as a witness in pursuance of this Act
+          shall, unless otherwise ordered by the court, give his
+          evidence from the witness box or other place from which the
+          other witnesses give their evidence.
+
+    (_h_) Nothing in this Act shall affect the provisions of section
+          eighteen of the Indictable Offences Act, 1848, or any right
+          of the person charged to make a statement without being sworn.
+
+  =2.= Where the only witness to the facts of the case called by the
+  defence is the person charged, he shall be called as a witness
+  immediately after the close of the evidence for the prosecution.
+
+  =3.= In cases where the right of reply depends upon the question
+  whether evidence has been called for the defence, the fact that the
+  person charged has been called as a witness shall not of itself
+  confer on the prosecution the right of reply.
+
+  =4.= (1) The wife or husband of a person charged with an offence
+  under any enactment mentioned in the schedule to this Act may be
+  called as a witness either for the prosecution or defence and without
+  the consent of the person charged.
+
+  (2) Nothing in this Act shall affect a case where the wife or husband
+  of a person charged with an offence may at common law be called as a
+  witness without the consent of that person.
+
+  =5.= In Scotland, in a case where a list of witnesses is required,
+  the husband or wife of a person charged shall not be called as
+  a witness for the defence, unless notice be given in the terms
+  prescribed by section thirty-six of the Criminal Procedure (Scotland)
+  Act, 1887.
+
+  =6.= (1) This Act shall apply to all criminal proceedings,
+  notwithstanding any enactment in force at the commencement of this
+  Act, except that nothing in this Act shall affect the Evidence Act,
+  1877.
+
+  (2) But this Act shall not apply to proceedings in courts martial
+  unless so applied--
+
+    (_a_) as to courts martial under the Naval Discipline Act, by
+          general orders made in pursuance of section sixty-five of
+          that Act, and
+
+    (_b_) as to courts martial under the Army Act by rules made in
+          pursuance of section seventy of that Act.
+
+  =7.= (1) This Act shall not extend to Ireland.
+
+  (2) This Act shall come into operation on the expiration of two
+  months from the passing thereof.
+
+  (3) This Act may be cited as the Criminal Evidence Act, 1898.
+
+It seems a farce to put a criminal in the position of a witness, and
+unless he has his wits about him he may have good cause to regret
+taking advantage of the Act. The evidence of an accused person must, of
+necessity, be discounted in the mind of the judge, and very properly,
+too, when it is almost invariably false, or, at best, materially
+tainted with falsehood. The instinct of self-preservation is strong
+in every man, however lowly his sphere; accuse a public servant of
+drunkenness while on duty, and he will, with the aid of his associates,
+manufacture evidence of his invariable sobriety! It is the same thing
+with persons accused of crime. Accuse them, and they will fight to
+escape. That they are guilty is a detail. The Criminal Evidence Act
+merely gives them an additional crutch on which to lean, _i.e._, the
+license of personal explanation. That the Act is based on benevolence
+and a desire to do justice, and for such reasons is worthy of respect,
+one cannot doubt, but candour compels one to submit, also, that it
+affords a fertile opportunity for perjury on the part of a criminal,
+and for an unnecessary waste of time.
+
+Since the trial, at the Central Criminal Court, of the murderer,
+“Stinie” Morrison, or Morris Stein, the Criminal Evidence Act has
+attracted a good deal of special comment. The bulk of this comment
+has been directed against that portion of subsection (_b_), section
+1, which, where “the nature or conduct of the defence is such as to
+involve imputations on the character of the prosecutor or the witnesses
+for the prosecution,” authorises the prosecution to question the
+accused as to his past crimes, convictions, etc.
+
+“Defending counsel may again, as in Rex v. Morrison,” says a legal
+writer in _The Daily Mail_, “feel it his duty to attack the characters
+of some of the witnesses for the Crown. At once the prisoner is
+rendered liable to have his whole dossier--generally a damaging
+one--laid before the jury. That is an immense step forward to the
+Continental system, where the judge’s interrogatories always begin with
+a catechism on the prisoner’s previous crimes.”
+
+The same matter has brought some remarks from the law correspondent of
+_The Pall Mall Gazette_, “If there is to be legislation on the subject,
+one suggestion may be hazarded. It is that, whatever other amendments
+in the Criminal Evidence Act experience may demand, an exception from
+the stringent rule should be made in capital cases. When the penalty
+is death, admit nothing but ‘the facts’ and exclude bad character from
+them.”
+
+Even _The Law Times_ takes up much the same attitude as the lay
+journals. “It has always been our boast,” it states, “so far as the
+administration of our criminal law is concerned, that a prisoner must
+be deemed to be innocent until he is proved guilty and that the onus is
+upon the prosecution to prove his guilt. The effect of the Act of 1898
+has been imperceptibly and gradually to change that position, and to a
+large extent nowadays the onus of proving his innocence in many cases
+in fact falls upon the accused.”
+
+
+
+
+Transcriber’s Notes
+
+
+ • Italic text represented with surrounding _underscores_.
+
+ • Bold text represented with surrounding =equal signs=.
+
+ • Small Caps converted to ALL CAPS.
+
+ • Obvious typographic errors silently corrected.
+
+ • Variations in hyphenation and spelling left as in the original.
+
+ • Footnotes renumbered consecutively and moved to the end of their
+   respective chapters. There are two intentionally duplicated footnote
+   references that use the same footnote source.
+*** END OF THE PROJECT GUTENBERG EBOOK 77236 ***
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+/* Illustration classes */
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+</head>
+<body>
+<div style='text-align:center'>*** START OF THE PROJECT GUTENBERG EBOOK 77236 ***</div>
+<div class='x-ebookmaker-drop'>
+<figure class="figcenter illowp49" id="cover" style="max-width: 126.5em;">
+  <img class="w100" src="images/cover.jpg" alt="Book Cover">
+</figure>
+</div>
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+<p><span class="pagenum" id="Page_1">[1]</span></p>
+</div>
+
+<h1>
+ANOMALIES OF THE<br>
+ENGLISH LAW
+</h1>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+<p><span class="pagenum"><a id="Page_2"></a><a id="Page_3"></a>[3]</span></p>
+</div>
+
+<div class='title-page'>
+<p class="title">ANOMALIES OF THE<br>
+ENGLISH LAW</p>
+
+<p class="tp-by">BY</p>
+
+<p class="author">SAMUEL BEACH CHESTER</p>
+
+<blockquote>
+Of the Middle Temple, Esquire, Barrister-at-Law;
+Fellow of the Royal Geographical Society;
+Companion of the Military Order of the Loyal
+Legion of the United States, Commandery of
+Pennsylvania; Member of the (U.S.) Military
+Service Institution, Governor’s Island, New York
+Harbour.
+</blockquote>
+
+<p class="pub-city">BOSTON</p>
+<p class='pub'>LITTLE, BROWN, <span class="allsmcap">AND</span> COMPANY</p>
+<p class='pub-date'>1912</p>
+</div>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum" id="Page_4">[4]</span></p>
+  <p class='printed'>
+    PRINTED IN GREAT BRITAIN
+  </p>
+</div>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+<p><span class="pagenum" id="Page_5">[5]</span></p>
+  <h2 class="nobreak" id="CONTENTS">
+    CONTENTS
+  </h2>
+</div>
+
+<table class='toc'>
+<tr><th></th><th class='tdr'><span class='allsmcap'>PAGE</span></th></tr>
+<tr>
+<td class='tdc' colspan='2'><a href="#INTRODUCTION1">INTRODUCTION.</a></td>
+</tr>
+<tr>
+<td class='tdl'><span class="smcap">A Satire on Barristers, by Charles Lever</span></td>
+<td class='tdr'><a href='#Page_9'>9</a></td>
+</tr>
+<tr>
+<td class='tdc' colspan='2'><a href='#CHAPTER_I'>CHAPTER I</a></td>
+</tr>
+<tr>
+<td class='tdl'><span class='smcap'>Divorce</span></td>
+<td class='tdr'><a href='#Page_19'>19</a></td>
+</tr>
+<tr>
+<td class='tdc' colspan='2'><a href='#CHAPTER_II'>CHAPTER II</a></td>
+</tr>
+<tr>
+<td class='tdl'><span class='smcap'>Death and Burial</span></td>
+<td class='tdr'><a href='#Page_44'>44</a></td>
+</tr>
+<tr>
+<td class='tdc' colspan='2'><a href='#CHAPTER_III'>CHAPTER III</a></td>
+</tr>
+<tr>
+<td class='tdl'><span class='smcap'>Wills</span></td>
+<td class='tdr'><a href='#Page_67'>67</a></td>
+</tr>
+<tr>
+<td class='tdc' colspan='2'><a href='#CHAPTER_IV'>CHAPTER IV</a></td>
+</tr>
+<tr>
+<td class='tdl'><span class='smcap'>Libel and Slander</span></td>
+<td class='tdr'><a href='#Page_81'>81</a></td>
+</tr>
+<tr>
+<td class='tdc' colspan='2'><a href='#CHAPTER_V'>CHAPTER V</a></td>
+</tr>
+<tr>
+<td class='tdl'><span class='smcap'>Imprisonment for Debt</span></td>
+<td class='tdr'><a href='#Page_97'>97</a></td>
+</tr>
+<tr>
+<td class='tdc' colspan='2'><a href='#CHAPTER_VI'>CHAPTER VI</a></td>
+</tr>
+<tr>
+<td class='tdl'><span class='smcap'>The Need for the Right of Property in Surnames</span></td>
+<td class='tdr'><a href='#Page_116'>116</a></td>
+</tr>
+<tr>
+<td class='tdc' colspan='2'><span class="pagenum" id="Page_6">[6]</span>
+ <a href='#CHAPTER_VII'>CHAPTER VII</a></td>
+</tr>
+<tr>
+<td class='tdl'><span class='smcap'>Literary Censorship</span></td>
+<td class='tdr'><a href='#Page_131'>131</a></td>
+</tr>
+<tr>
+<td class='tdc' colspan='2'><a href='#CHAPTER_VIII'>CHAPTER VIII</a></td>
+</tr>
+<tr>
+<td class='tdl'><span class='smcap'>Capital Punishment, Murder and Suicide</span></td>
+<td class='tdr'><a href='#Page_145'>145</a></td>
+</tr>
+<tr>
+<td class='tdc' colspan='2'><a href='#CHAPTER_IX'>CHAPTER IX</a></td>
+</tr>
+<tr>
+<td class='tdl'><span class='smcap'>Legitimation</span></td>
+<td class='tdr'><a href='#Page_165'>165</a></td>
+</tr>
+<tr>
+<td class='tdc' colspan='2'><a href='#CHAPTER_X'>CHAPTER X</a></td>
+</tr>
+<tr>
+<td class='tdl'><span class='smcap'>Criminal Appeal and the Ball Case</span></td>
+<td class='tdr'><a href='#Page_176'>176</a></td>
+</tr>
+<tr>
+<td class='tdc' colspan='2'><a href='#CHAPTER_XI'>CHAPTER XI</a></td>
+</tr>
+<tr>
+<td class='tdl'><span class='smcap'>Client, Solicitor, and Counsel</span></td>
+<td class='tdr'><a href='#Page_185'>185</a></td>
+</tr>
+<tr>
+<td class='tdc' colspan='2'><a href='#CHAPTER_XII'>CHAPTER XII</a></td>
+</tr>
+<tr>
+<td class='tdl'><span class='smcap'>The Morality Bill, Accession, and
+ Coronation Oaths and Declarations</span></td>
+<td class='tdr'><a href='#Page_203'>203</a></td>
+</tr>
+<tr>
+<td class='tdc app' colspan='2'>  APPENDICES.</td>
+</tr>
+<tr>
+<td class='tdc' colspan='2'><a href='#APPENDIX_A'>APPENDIX A</a></td>
+</tr>
+<tr>
+<td class='tdl'><span class='smcap'>Divorce</span></td>
+<td class='tdr'><a href='#Page_229'>229</a></td>
+</tr>
+<tr>
+<td class='tdc' colspan='2'>
+<p><span class="pagenum" id="Page_7">[7]</span></p>
+ <a href='#APPENDIX_B'>APPENDIX B</a></td>
+</tr>
+<tr>
+<td class='tdl'><span class='smcap'>Coroners</span></td>
+<td class='tdr'><a href='#Page_233'>233</a></td>
+</tr>
+<tr>
+<td class='tdc' colspan='2'><a href='#APPENDIX_C'>APPENDIX C</a></td>
+</tr>
+<tr>
+<td class='tdl'><span class='smcap'>The Royal Marriages Act, 1772</span></td>
+<td class='tdr'><a href='#Page_237'>237</a></td>
+</tr>
+<tr>
+<td class='tdc' colspan='2'><a href='#APPENDIX_D'>APPENDIX D</a></td>
+</tr>
+<tr>
+<td class='tdl'><span class='smcap'>Executions</span></td>
+<td class='tdr'><a href='#Page_239'>239</a></td>
+</tr>
+<tr>
+<td class='tdc' colspan='2'><a href='#APPENDIX_E'>APPENDIX E</a></td>
+</tr>
+<tr>
+<td class='tdl'><span class='smcap'>An English Legitimation Bill</span></td>
+<td class='tdr'><a href='#Page_243'>243</a></td>
+</tr>
+<tr>
+<td class='tdc' colspan='2'><a href='#APPENDIX_F'>APPENDIX F</a></td>
+</tr>
+<tr>
+<td class='tdl'><span class='smcap'>The Criminal Appeal Act, 1907</span></td>
+<td class='tdr'><a href='#Page_244'>244</a></td>
+</tr>
+<tr>
+<td class='tdc' colspan='2'><a href='#APPENDIX_G'>APPENDIX G</a></td>
+</tr>
+<tr>
+<td class='tdl'><span class='smcap'>The Coronation Oath of King George V</span></td>
+<td class='tdr'><a href='#Page_262'>262</a></td>
+</tr>
+<tr>
+<td class='tdc' colspan='2'><a href='#APPENDIX_H'>APPENDIX H</a></td>
+</tr>
+<tr>
+<td class='tdl'><span class='smcap'>The Poor Prisoners’ Defence Act, the Perjury Bill,
+   and the Criminal Evidence Act</span></td>
+<td class='tdr'><a href='#Page_265'>265</a></td>
+</tr>
+</table>
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+<p><span class="pagenum" id="Page_8">[8]</span></p>
+</div>
+
+<div class='dedication'>
+<div class='poetry-container'>
+<div class='poetry'>
+<p class='dedication1'> <span class="smcap">I Dedicate this Writing to my Friend</span>,</p>
+<p class='dedication2'><span class='blackletter'>William H. Cozens-Hardy,</span></p>
+<p class='dedication3'><span class="smcap">of Lincoln’s Inn</span>.</p>
+
+<p class='right'>
+  S. B. C.
+</p>
+</div></div>
+</div>
+
+<p><span class="pagenum" id="Page_9">[9]</span></p>
+
+<hr class="chap x-ebookmaker-drop">
+
+<div class="chapter">
+<p class='half-title'>
+  ANOMALIES OF THE<br>
+  ENGLISH LAW
+</p>
+</div>
+
+  <h2 class="nobreak" id="INTRODUCTION1">
+    INTRODUCTION&#x2060;<a id="FNanchor_1_1" href="#Footnote_1_1" class="fnanchor">[1]</a>
+  </h2>
+
+
+<p>“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.</p>
+
+<p><span class="pagenum" id="Page_10">[10]</span></p>
+
+<p>“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
+<span class="pagenum" id="Page_11">[11]</span>
+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.</p>
+
+<p>“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.</p>
+
+<p><span class="pagenum" id="Page_12">[12]</span></p>
+
+<p>“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.</p>
+
+<p>“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
+<span class="pagenum" id="Page_13">[13]</span>
+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.</p>
+
+<p>“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.</p>
+
+<p><span class="pagenum" id="Page_14">[14]</span></p>
+
+<p>“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 <i>Durham</i> against the <i>Aurora</i>, a
+foreign vessel, and <i>vice versâ</i>, 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 <i>Durham</i>,
+which preceded the Prussian vessel, ‘clewed
+up her topsails, and dropped her anchor
+<i>rather</i> suddenly: and the <i>Aurora</i> being in
+the rear, the vessels came into collision.’
+The question, therefore, was, whether the
+<i>Durham</i> came to anchor too precipitately,
+and in an unseamanlike manner; or, in other
+words, whether, when the ‘<i>Durham</i> clewed up
+topsails and let go her anchor, the <i>Aurora</i>
+should not have luffed up, or got sternway
+on her,’ etc.</p>
+
+<p>“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
+<span class="pagenum" id="Page_15">[15]</span>
+hurled at each other, like <i>bon bons</i> 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.</p>
+
+<p>“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 <i>bonne
+bouche</i>.... How I trembled for the <i>Aurora</i>,
+when an elderly gentleman, with a wart on his
+nose, assured the court that the <i>Durham</i> had
+her topsail backed ten minutes before the
+anchor fell; and then, how I feared again for
+the <i>Durham</i>, 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
+<span class="pagenum" id="Page_16">[16]</span>
+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.</p>
+
+<p>“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,
+<span class="pagenum" id="Page_17">[17]</span>
+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.”</p>
+
+<div class='footnotes'>
+<h3>
+  FOOTNOTE
+</h3>
+<div class="footnote"><p><a id="Footnote_1_1" href="#FNanchor_1_1" class="label">[1]</a> A satire on barristers, by Charles Lever.</p></div>
+</div>
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum"><a id="Page_18"></a><a id="Page_19"></a>[19]</span></p>
+
+  <h2 class="nobreak" id="CHAPTER_I">
+    CHAPTER I
+  </h2>
+<p class='chap-title'>
+    DIVORCE&#x2060;<a id="FNanchor_2_2" href="#Footnote_2_2" class="fnanchor">[2]</a>
+  </p>
+</div>
+
+
+<p>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
+<span class="pagenum" id="Page_20">[20]</span>
+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.</p>
+
+<p>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.)</p>
+
+<p>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
+<span class="pagenum" id="Page_21">[21]</span>
+frequently leads to the misfortunes of a third
+person, who might otherwise escape on a
+conscionable arrangement. <i>A</i> is the husband
+of <i>B</i>. <i>A</i> 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;
+<i>B</i> soon becomes desperate; presently, she
+encourages many lovers and her last vestige
+of self-respect disappears. Henceforth, she
+is a <i>déclassée</i>. <i>A</i>, 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 <i>A</i> and <i>B</i> 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
+<span class="pagenum" id="Page_22">[22]</span>
+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.</p>
+
+<p>The judicial separation of to-day is one
+of the most unsatisfactory phases of matrimonial
+law and practice. Let us, for example,
+assume that <i>C</i> is the husband of <i>D</i>. <i>C</i> is a
+drunkard, a man of loose morals and disagreeable
+temperament. <i>D</i> 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
+<span class="pagenum" id="Page_23">[23]</span>
+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.</p>
+
+<p>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 <i>nisi</i> (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
+<i>entr’acte</i> which separates the decree <i>nisi</i> 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
+<span class="pagenum" id="Page_24">[24]</span>
+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.</p>
+
+<p>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
+<span class="pagenum" id="Page_25">[25]</span>
+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
+<span class="pagenum" id="Page_26">[26]</span>
+an alternative to uncomfortable virtue, unexpected
+virtue, should be definitely altered
+to meet the demands of the social
+system.</p>
+
+<p>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 <i>nisi</i>
+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
+<i>liaison</i>. All these things should be considered,
+indeed <i>would be</i> 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.</p>
+
+<p>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.&#x2060;<a id="FNanchor_3_3" href="#Footnote_3_3" class="fnanchor">[3]</a> It appeared that the
+woman, who petitioned, had passed a very
+<span class="pagenum" id="Page_27">[27]</span>
+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.</p>
+
+<p>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
+<span class="pagenum" id="Page_28">[28]</span><i>in formâ pauperis</i>. 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 <i>in formâ pauperis</i>.</p>
+
+<p>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
+<span class="pagenum" id="Page_29">[29]</span>
+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
+<i>rôle</i> 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
+<span class="pagenum" id="Page_30">[30]</span>
+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
+<span class="pagenum" id="Page_31">[31]</span>
+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
+<span class="pagenum" id="Page_32">[32]</span>
+trifling reaction from the constant billow of
+petty money claims.</p>
+
+<p>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 <i>his</i> solicitor to be honest. Let
+the day of disillusionment be far off!</p>
+
+<p>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.
+<span class="pagenum" id="Page_33">[33]</span>
+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
+<span class="pagenum" id="Page_34">[34]</span>
+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.</p>
+
+<p><span class="pagenum" id="Page_35">[35]</span></p>
+
+<p>What is known as the “restitution of conjugal
+rights” might as a phase of matrimonial
+law be consigned to the scrap-heap.&#x2060;<a id="FNanchor_4_4" href="#Footnote_4_4" class="fnanchor">[4]</a> 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,
+<span class="pagenum" id="Page_36">[36]</span>
+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.</p>
+
+<p>“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
+<span class="pagenum" id="Page_37">[37]</span>
+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.”&#x2060;<a id="FNanchor_5_5" href="#Footnote_5_5" class="fnanchor">[5]</a></p>
+
+<p>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.”&#x2060;<a href="#Footnote_5_5" class="fnanchor">[5]</a></p>
+
+<p><span class="pagenum" id="Page_38">[38]</span></p>
+
+<p>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
+<span class="pagenum" id="Page_39">[39]</span>
+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 (<i>dos</i>), and to pay or
+implement to the wife all her provisions,
+<span class="pagenum" id="Page_40">[40]</span>
+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.”</p>
+
+<p>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
+<span class="pagenum" id="Page_41">[41]</span>
+touch in this work, which contain a better
+perspective of justice than similar branches
+of law in this country.</p>
+
+<p>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!</p>
+
+<p>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:—</p>
+
+<p>(1) A Divorce Court, with a judge or judges
+exclusively occupied with matrimonial
+causes.</p>
+
+<p>(1a) The transference of Probate and Admiralty
+work to the Chancery and King’s
+Bench Divisions respectively.</p>
+
+<p>(2) The granting of divorce to either party
+where domiciliary separation has existed for
+one year.</p>
+
+<p><span class="pagenum" id="Page_42">[42]</span></p>
+
+<p>(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).</p>
+
+<p>(4) The abolition of the judicial separation;
+also, of the separation by deed.</p>
+
+<p>(5) The abolition of the petition for the
+restitution of conjugal rights.</p>
+
+<p>(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</p>
+
+<p>(7) The system of granting financial provision,
+<i>i.e.</i>, alimony, to an untainted wife
+who petitions, to stand on the present basis.
+Also, damages against a co-respondent to
+stand.</p>
+
+<p>(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.</p>
+
+<p>(9) The donation of powers to grant divorce
+<span class="pagenum" id="Page_43">[43]</span>
+to all County Court judges, for purposes of
+expediency in connection with the poor.</p>
+
+<p>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.</p>
+
+<div class='footnotes'>
+<h3 id="FOOTNOTES_1">
+  FOOTNOTES
+</h3>
+
+<div class="footnote"><p><a id="Footnote_2_2" href="#FNanchor_2_2" class="label">[2]</a> See Appendix A.</p></div>
+
+<div class="footnote"><p><a id="Footnote_3_3" href="#FNanchor_3_3" class="label">[3]</a> Pretty <i>v.</i> Pretty.</p></div>
+
+<div class="footnote"><p><a id="Footnote_4_4" href="#FNanchor_4_4" class="label">[4]</a> “In granting the application of a Paris doctor for
+restitution of conjugal rights, the judges have made an
+interesting new departure by fixing a penalty of £4 for
+every day’s delay in complying with the order of the Court.
+They consider this the most practical means of bringing
+the recalcitrant wife to reason.”—<i>Pall Mall Gazette.</i></p></div>
+
+<div class="footnote"><p><a id="Footnote_5_5" href="#FNanchor_5_5" class="label">[5]</a> Lord Mackenzie in <i>Studies in Roman Law with Comparative
+Views of the Laws of France, England, and Scotland</i>.</p></div>
+</div>
+
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum" id="Page_44">[44]</span></p>
+
+
+  <h2 class="nobreak" id="CHAPTER_II">
+    CHAPTER II
+    </h2>
+<p class='chap-title'>
+    DEATH AND BURIAL&#x2060;<a id="FNanchor_6_6" href="#Footnote_6_6" class="fnanchor">[6]</a>
+  </p>
+</div>
+
+
+<p>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.</p>
+
+<p>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
+<span class="pagenum" id="Page_45">[45]</span>
+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.</p>
+
+<p>Some estimate of the purpose of the new
+Coroners’ Bill, will be found in the following
+<i>Memorandum</i>:</p>
+
+<p>“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.</p>
+
+<p>“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
+<span class="pagenum" id="Page_46">[46]</span>
+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 (<i>vide</i>
+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.</p>
+
+<p>“The law relating to coroners is not adapted
+to modern necessities; its administration is
+costly to local authorities without securing
+efficiency in results.</p>
+
+<p>“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.</p>
+
+<p>“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.</p>
+
+<p><span class="pagenum" id="Page_47">[47]</span></p>
+
+<p>“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.</p>
+
+<p>“The law does not at present contemplate
+inquiry by a coroner except in view of a
+subsequent formal inquest, nor can he order a
+<i>post mortem</i> 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.</p>
+
+<p>“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
+<span class="pagenum" id="Page_48">[48]</span>
+certificate of death to <i>certify as to the fact of
+death</i>,&#x2060;<a id="FNanchor_7_7" href="#Footnote_7_7" class="fnanchor">[7]</a> 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. <i>The present law of
+death certification offers every opportunity for
+premature burial and every facility for concealment
+of crime.</i>’”&#x2060;<a href="#Footnote_7_7" class="fnanchor">[7]</a></p>
+
+<p>With allusion to premature burial and concealment
+of crime, the <i>Memorandum</i> attached
+to the new Bill comes to an end. The Bill
+itself settles down to deal with “Coroners.”</p>
+
+<p>Section 1. “Every power to appoint a
+coroner shall cease upon the first occurrence
+of a vacancy in the office of coroner after the
+<i>commencement of this Act</i>.”</p>
+
+<p>Then follow certain references as to the
+redistribution of coroners’ jurisdictions. The
+financial aspect of the office of coroner is not
+neglected.</p>
+
+<p>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
+<span class="pagenum" id="Page_49">[49]</span>
+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.”</p>
+
+<p>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.”</p>
+
+<p>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.</p>
+
+<p>Section 5. “No person shall be appointed
+a coroner unless he be a practising barrister
+of not less than five years’ standing, or a
+<span class="pagenum" id="Page_50">[50]</span>
+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.”</p>
+
+<p>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.</p>
+
+<p>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
+<span class="pagenum" id="Page_51">[51]</span>
+necessary for the proper carrying out of the
+duties of the office of coroner.”</p>
+
+<p>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 <i>post
+mortem</i> 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
+<span class="pagenum" id="Page_52">[52]</span>
+are anything like necessary in country
+districts.</p>
+
+<p>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 <i>post mortem</i> 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.”</p>
+
+<p>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 <i>post mortem</i> 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
+<span class="pagenum" id="Page_53">[53]</span>
+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.”</p>
+
+<p>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.”</p>
+
+<p>It is to be hoped that this section will be the
+<span class="pagenum" id="Page_54">[54]</span>
+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 <i>quasi</i>-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
+<span class="pagenum" id="Page_55">[55]</span>
+should be an inquest. Where there is no
+suspicion as a <i>raison d’être</i> for an inquest,
+there should be no inquest.&#x2060;<a id="FNanchor_8_8" href="#Footnote_8_8" class="fnanchor">[8]</a> 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 <i>post mortem</i> examination.</p>
+
+<p>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 <i>post
+mortem</i> or against the necessity for it. It
+<span class="pagenum" id="Page_56">[56]</span>
+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 <i>post mortem</i> 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>i.e.</i>,
+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.</p>
+
+<p>The second part of the Coroners’ Law and
+Death Certification (Amendment) Bill is concerned
+with questions of death certification
+<span class="pagenum" id="Page_57">[57]</span>
+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
+<i>certify to the fact of death as well as to its cause</i>.”
+(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.</p>
+
+<p>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
+<span class="pagenum" id="Page_58">[58]</span>
+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.”</p>
+
+<p>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.</p>
+
+<p>Section 24. “No person responsible for
+the burial or other disposition of any dead
+<span class="pagenum" id="Page_59">[59]</span>
+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 <i>five pounds</i> for
+every day during which he fails to comply
+as aforesaid.”</p>
+
+<p>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.”</p>
+
+<p>By the foregoing extracts from the new
+Bill, it will be seen that a greater attention
+is to be paid to establishing <i>the fact of death</i>,
+something which hitherto has been left to
+<span class="pagenum" id="Page_60">[60]</span>
+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 <i>prove the fact of death</i>.</p>
+
+<p>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
+<span class="pagenum" id="Page_61">[61]</span>
+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.</p>
+
+<p>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 <i>temporary burial</i>, is one. A person
+dies and a grave is leased for five years. At
+<span class="pagenum" id="Page_62">[62]</span>
+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 <i>concessionnaire</i>
+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!</p>
+
+<p>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
+<span class="pagenum" id="Page_63">[63]</span>
+Maple and Co.!&#x2060;<a id="FNanchor_9_9" href="#Footnote_9_9" class="fnanchor">[9]</a> 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,
+<span class="pagenum" id="Page_64">[64]</span>
+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 <i>bizarre</i> mockeries connected
+with funerals, should be ended by the
+force of common sense. The system continues
+<span class="pagenum" id="Page_65">[65]</span>
+through habit, through a certain
+repulsion which many people have for giving
+practical thought to death and its circumstances.&#x2060;<a id="FNanchor_10_10" href="#Footnote_10_10" class="fnanchor">[10]</a></p>
+
+<div class='footnotes'>
+<h3 id="FOOTNOTES_2">
+  FOOTNOTES
+</h3>
+
+<div class="footnote"><p><a id="Footnote_6_6" href="#FNanchor_6_6" class="label">[6]</a> See Appendix B.</p></div>
+
+<div class="footnote"><p><a id="Footnote_7_7" href="#FNanchor_7_7" class="label">[7]</a> Mr. Chester’s italics.</p></div>
+
+<div class="footnote"><p><a id="Footnote_8_8" href="#FNanchor_8_8" class="label">[8]</a> “The Isle of Wight Coroner to-day decided that an
+inquest was unnecessary on Sir Alfred Lyall, who died suddenly
+at Lord Tennyson’s yesterday. Sir Alfred’s medical
+attendant has certified that he was suffering from angina
+pectoris. The funeral will take place at Harbledown, near
+Canterbury.” From the foregoing paragraph in <i>The Pall
+Mall Gazette</i>, April 11, 1911, it will be seen that the discretion
+allowed the coroner has been well employed. Though Sir
+Alfred Lyall fell down dead in his room, there was obviously
+no cause for an inquest.</p></div>
+
+<div class="footnote"><p><a id="Footnote_9_9" href="#FNanchor_9_9" class="label">[9]</a> “The French have the reputation of being a witty
+people, but although they have shaken off belief in revelation,
+they are to the last degree credulous in other things. No
+invention, says <i>The British Medical Journal</i>, seems to be too
+silly for a French paper to palm off on its readers when it
+deals with English matters. Not long ago it was gravely
+announced in a French medical journal that an English
+company had been formed to work a patent for the installation
+of cremation ovens in private houses.... Our
+contemporary, which professes to quote from a circular issued
+by the new company, states that the apparatus is therein
+described as ‘a gas furnace, low, but long and wide, covered
+with a steel case, into which the coffin is introduced.’
+The corpse, it is said, is burnt in a few seconds. The oven
+must be heated an hour beforehand. For those who do not
+happen to possess this convenient arrangement among their
+household furniture, the company offers it on hire. All one
+has to do is to telephone to the right address and the company
+will forthwith send the apparatus with skilled operatives
+to work it. The price of the whole apparatus is given
+at £90, and the total cost of the operation as £2. But the
+company hopes that if its affairs prosper it will be able to
+reduce the price. Here, says our contemporary, is an idea
+which could only spring from the brain of an Anglo-Saxon....
+To this we reply that the idea, wherever it sprang
+from, could only have been published in a French journal.
+This suggested addition to the comforts of the English home
+opens up wide possibilities. We are recognised as the
+pioneers of sanitation. Are not our water-closets diffused
+throughout the civilised globe? The bathroom has
+followed, though to a much more limited extent. A home
+crematory would certainly have several advantages, alike
+from the sentimental and the practical points of view. The
+crematory <i>à domicile</i> would sweep away once and for all the
+mourning coaches, undertakers’ men, and all the trappings
+and ceremonies that make death hideous to all but those
+ghouls who find an unholy joy in the last rites paid to a
+defunct fellow creature.... With the home crematory
+available the only funeral-baked meat would be the corpse
+of the deceased. Now that we are told to lead the simple
+life, here is a way of getting rid once and for all of one of
+the most artificial ceremonies of civilised life. A crematory
+in the home would also supply to unscrupulous persons who
+wished to get rid of inconvenient relatives an easy way of
+disposing of the compromising remains. Lest the lively
+but simple-minded Gaul should misunderstand us, we
+hasten to add the warning which Artemus Ward found
+necessary for his readers, that this is a ‘goak.’”—<i>Pall Mall
+Gazette</i>, April 15, 1911.</p></div>
+
+<div class="footnote"><p><a id="Footnote_10_10" href="#FNanchor_10_10" class="label">[10]</a> It has frequently occurred to the writer, who has made a
+practical study of such subjects, that the conduct and
+methods of persons who traffic in the disposal of dead bodies
+should be brought into the closer cognizance of the law. A
+regular system of police inspection is required. The acts and
+omissions of the irresponsible scavengers who thrive on
+burying the dead are often of such a character that the
+law itself is infringed. A popular weekly paper contains
+the following passage in its current issue:—“In one
+of the poorer districts of Manchester the police have just
+found on the premises of a female undertaker the bodies of
+nine children—all very young, seventeen days being the
+oldest—waiting until the parents could secure the necessary
+burial fees, to be buried. The remains were discovered in an
+outhouse; and, impossible as it may seem, one body had
+been there for two weeks.... On making inquiries, I find
+that there is nothing at all unusual in this procedure. The
+poorer people are very sensitive where their dead are concerned,
+and have a great aversion to what is termed ‘a
+pauper’s grave.’ It is in times of trouble or death that the
+real good-heartedness of the working-class shows itself.
+Directly the neighbours learn that the house of someone in
+their midst has been visited by death, a subscription is
+started. However, as they are in receipt of only a meagre
+wage themselves, a week or so often has to pass ere sufficient
+has been raised to satisfy the undertaker, and apparently
+his premises are used as a sort of pawnshop for dead bodies....
+When a child has had a separate existence, the doctor
+gives a certificate of death, and a <i>post mortem</i> is not necessary.
+Consequently, it is very doubtful if anything further
+will be heard about the matter.”</p>
+
+<p>The poor make, relatively, the easiest victims in connection
+with funeral extortions. One hears of defunct
+costermongers being carted to the grave in four-horsed
+hearses, etc.! A good example of funeral extravagance is
+to be found in the subjoined paragraph:—“<i>Miner’s
+Funeral Costs £40.</i>—It was shown at Pontefract County
+Court, on Tuesday, that the mother of a miner, just
+deceased, had spent £40 on the funeral. This sum
+included £5 10s. for tea to 110 persons who attended.
+There was also £10 for dresses, and the mother had
+borrowed £16 to make other payments.”</p>
+
+<p>It is interesting to note that there is no right of
+property in a corpse. It is usual, however, for the
+executors of the deceased to have possession of the body
+and to control the means and method of disposal.</p></div>
+</div>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum"><a id="Page_66"></a><a id="Page_67"></a>[67]</span></p>
+
+
+  <h2 class="nobreak" id="CHAPTER_III">
+    CHAPTER III
+    </h2>
+<p class='chap-title'>    WILLS
+  </p>
+</div>
+
+
+<p>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.</p>
+
+<p>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
+<span class="pagenum" id="Page_68">[68]</span>
+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
+<span class="pagenum" id="Page_69">[69]</span>
+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&#x2060;<a id="FNanchor_11_11" href="#Footnote_11_11" class="fnanchor">[11]</a> and in the testator’s presence.</p>
+
+<p>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 <i>intention</i>. 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
+<span class="pagenum" id="Page_70">[70]</span>
+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.)</p>
+
+<p>The primary object at present is to show,
+quite simply, the working of the Statute of
+Wills, which came into operation January 1,
+1838.</p>
+
+<p>Towards the end of the month of March, not
+many years ago, <i>A</i>, the son of <i>B</i>, was asked by
+<i>B</i>, 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 <i>A</i>—her only child (the
+offspring of her first marriage)—that she
+had already provided for her second husband,
+<i>C</i>, 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. <i>A</i> gave
+the matter no more attention, and for several
+<span class="pagenum" id="Page_71">[71]</span>
+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
+<i>B’s</i> 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,
+<i>B’s</i> manservant arrived at <i>A’s</i> chambers
+with a summons for him to go to his mother
+at once, as she was <i>in extremis</i>. <i>A</i> hastened
+to dress, and, after a delay in finding a cab—for
+the servant had come on foot through <i>C’s</i>
+intervention, <i>though the distance was four
+miles</i>—he hurried to his mother’s bedside.
+On arriving there, he found two nurses and a
+doctor present. <i>A</i> asked whether the will
+had been executed, and his mother, who
+overheard the question, intimated that it
+was in a chest of drawers. <i>B</i> 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. <i>A</i> then went downstairs
+to obtain some ink. On returning,
+he discovered <i>C</i>, who had entered the room
+during his absence, standing over <i>A</i>, with
+<span class="pagenum" id="Page_72">[72]</span>
+what was afterwards described in the Coroner’s
+Court as a very menacing expression. <i>B</i> 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.</p>
+
+<p>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. <i>A</i> and <i>C</i> 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 <i>B</i>, 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 <i>B’s</i>
+hand was dry. A peculiar injustice of the
+law, sorely felt in the case illustrated (where
+<span class="pagenum" id="Page_73">[73]</span>
+almost the whole estate consisted of personal
+property, <i>i.e.</i>, 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 <i>feme sole</i>. 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.</p>
+
+<p>The facts relating to <i>A</i>, <i>B</i>, and <i>C</i>, can be
+supplemented by a further illustration in
+connection with the law of wills.</p>
+
+<p>It is in the nature of a sequel, for <i>A</i> and <i>C</i>
+are parties to it, and probate of the will of <i>B</i>
+is the question at issue. Two or three years
+before her death, <i>B</i> confided an envelope
+endorsed in her own handwriting to her son
+<i>A</i>. This incident took place at a fashionable
+French watering-place, just prior to the
+<span class="pagenum" id="Page_74">[74]</span>
+departure of <i>B</i> (<i>A</i> was remaining on). The
+writing on the envelope, which was sealed,
+announced that it contained “The last Will
+and Testament of <i>B</i>.” <i>A</i> 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 <i>A</i> was tenant. It was then and
+there forgotten, until the death of <i>B</i> 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 <i>C’s</i> 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 <i>B</i> 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
+<span class="pagenum" id="Page_75">[75]</span>
+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 <i>in solemn
+form</i>. With the exception of an omission to
+appoint an executor, the will was complete and
+definite in its wording. <i>A</i> was left everything.
+Unfortunately, twenty shares of
+stock, worth several thousand pounds, were
+mentioned as having been given on a certain
+date to <i>C</i>. 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 <i>C</i> 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 <i>B</i>, <i>B</i> had exchanged with <i>C</i> the
+stock referred to in the will for other property
+of equal or greater value. When the case
+got to the Probate Court, <i>C</i>, after taking
+action to obstruct the free passage of the will
+by entering a <i>caveat</i>, agreed to withdraw
+opposition if he were forthwith handed half
+the stock in dispute. <i>A</i>, forced into a financial
+corner by an intimation that the wife (one of
+<span class="pagenum" id="Page_76">[76]</span>
+the will witnesses) of <i>C’s</i> 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 <i>C</i>. <i>A</i> was
+granted letters of administration <i>cum testamento
+annexo</i> (“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, <i>A</i> 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
+<span class="pagenum" id="Page_77">[77]</span>
+the testator and the other witness attached
+their signatures. This was the suggested
+line in the case stated.</p>
+
+<p>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
+<span class="pagenum" id="Page_78">[78]</span>
+murdered her.) Le Neve’s counsel argued
+that Crippen, as he had suffered the extreme
+penalty of the law, was no longer a
+felon.</p>
+
+<p>“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.”</p>
+
+<p>The judgment is interesting. It would in
+truth seem somewhat anomalous for a man to
+<span class="pagenum" id="Page_79">[79]</span>
+be able to murder his wife, succeed to her
+property, be convicted of the murder, and then
+leave such property to his ex-mistress.</p>
+
+<p>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.&#x2060;<a id="FNanchor_12_12" href="#Footnote_12_12" class="fnanchor">[12]</a>
+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.
+<span class="pagenum" id="Page_80">[80]</span>
+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.</p>
+
+<div class='footnotes'>
+<h3 id="FOOTNOTES_3">
+  FOOTNOTES
+</h3>
+
+<div class="footnote"><p><a id="Footnote_11_11" href="#FNanchor_11_11" class="label">[11]</a> It seems that it is not always absolutely necessary for
+the witnesses to sign in each other’s presence.</p></div>
+
+<div class="footnote"><p><a id="Footnote_12_12" href="#FNanchor_12_12" class="label">[12]</a> If not always essential, it is desirable.</p></div>
+</div>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum" id="Page_81">[81]</span></p>
+
+
+  <h2 class="nobreak" id="CHAPTER_IV">
+    CHAPTER IV
+    </h2>
+<p class='chap-title'>    LIBEL AND SLANDER
+  </p>
+</div>
+
+
+<p>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
+<i>v.</i> Mylius, arising out of a personal attack on
+King George; Howard de Walden <i>v.</i> Lewis,&#x2060;<a id="FNanchor_13_13" href="#Footnote_13_13" class="fnanchor">[13]</a>
+an extraordinary instance of libel; De Forest
+<i>v.</i> Milner and De Forest <i>v.</i> Lady Gerard (two
+actions for slander) were among the notorious
+batch to be heard in the Royal Courts of
+Justice during Hilary Term, 1911.</p>
+
+<p><span class="pagenum" id="Page_82">[82]</span></p>
+
+<p>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.</p>
+
+<p>According to Mr. Hugh Fraser, an authority
+on the subject,&#x2060;<a id="FNanchor_14_14" href="#Footnote_14_14" class="fnanchor">[14]</a> 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.”</p>
+
+<p>“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.”</p>
+
+<p><span class="pagenum" id="Page_83">[83]</span></p>
+
+<p>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 (<i>a</i>) that the author meant to
+refer to him, and (<i>b</i>) that the work was so
+written that those knowing the plaintiff
+would reasonably infer that he was intended.”</p>
+
+<p>To say of a barrister that he knows no law
+is actionable <i>per se</i>.&#x2060;<a id="FNanchor_15_15" href="#Footnote_15_15" class="fnanchor">[15]</a> To impute incapacity
+to a journalist is also, it would seem, actionable
+<i>per se</i>. “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.”</p>
+
+<p>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
+<span class="pagenum" id="Page_84">[84]</span>
+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.”</p>
+
+<p>“Where the words are not <i>primâ facie</i>
+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 <i>innuendo</i>.”</p>
+
+<p>“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
+<span class="pagenum" id="Page_85">[85]</span>
+grieved is no way lessened by the merriment
+of him who makes so light of it.’”</p>
+
+<p>“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.”</p>
+
+<p>“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.’”</p>
+
+<p>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,
+<span class="pagenum" id="Page_86">[86]</span>
+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.”</p>
+
+<p>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.”</p>
+
+<p>It is interesting to note that in printed
+libels, <i>i.e.</i>, in newspapers, books, etc., there
+is “a <i>primâ facie</i> case of publication against
+the defendant where the manuscript from
+which the libel was printed is shown to be
+<span class="pagenum" id="Page_87">[87]</span>
+in his handwriting, there being no necessity
+to prove that he expressly ordered or
+authorized the printing.”</p>
+
+<p>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.”</p>
+
+<p>“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.”</p>
+
+<p><span class="pagenum" id="Page_88">[88]</span></p>
+
+<p>“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
+<i>Libel and Slander</i>.</p>
+
+<p>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.</p>
+
+<p>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
+<span class="pagenum" id="Page_89">[89]</span>
+person chiefly responsible for the offence.
+<i>Liberator</i>, 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 <i>Liberator</i> 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.,&#x2060;<a id="FNanchor_16_16" href="#Footnote_16_16" class="fnanchor">[16]</a> 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
+<span class="pagenum" id="Page_90">[90]</span>
+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.</p>
+
+<p>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.</p>
+
+<p>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
+<span class="pagenum" id="Page_91">[91]</span>
+Independence,&#x2060;<a id="FNanchor_17_17" href="#Footnote_17_17" class="fnanchor">[17]</a> 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.</p>
+
+<p>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.
+<span class="pagenum" id="Page_92">[92]</span>
+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.&#x2060;<a id="FNanchor_18_18" href="#Footnote_18_18" class="fnanchor">[18]</a></p>
+
+<p>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
+<span class="pagenum" id="Page_93">[93]</span>
+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.”</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>There is at least one anomaly in the law
+<span class="pagenum" id="Page_94">[94]</span>
+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 <i>in camera</i> 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.&#x2060;<a id="FNanchor_19_19" href="#Footnote_19_19" class="fnanchor">[19]</a></p>
+
+<p><span class="pagenum" id="Page_95">[95]</span></p>
+
+<p>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!</p>
+
+<p>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 <i>Lex Cornelia</i>, it
+was made optional for the injured person to
+proceed against the offender either civilly or
+criminally. Truth is an answer to a civil
+<span class="pagenum" id="Page_96">[96]</span>
+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.</p>
+
+<p>It is possible, in this country, to libel the
+dead, <i>i.e.</i>, 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,
+“<i>actio personalis moritur cum persona</i>,” applies,
+too, for no right of <i>action</i> lies; the right to
+bring criminal proceedings, is that intended
+by the reference.</p>
+
+<div class='footnotes'>
+<h3 id="FOOTNOTES_4">
+  FOOTNOTES
+</h3>
+
+<div class="footnote"><p><a id="Footnote_13_13" href="#FNanchor_13_13" class="label">[13]</a> This libel action was based upon the posting by the
+defendant of two large boards (on his premises at the corner
+of Oxford Street and Holles Street) bearing respectively
+the words, “16 and 17, Holles Street, Lord Howard de
+Walden’s Monument of Iniquity,” and, “In the Holles
+Street Drama, the young Baron is discovered behind the
+curtain, pulling the wires for the imprisonment of his old
+tenant.” The defendant admitted that he had nothing
+against the plaintiff personally; he said that he wished to
+draw attention to his grievance against the managers of the
+Howard de Walden Estate. In the result, judgment was
+entered for the plaintiff.</p></div>
+
+<div class="footnote"><p><a id="Footnote_14_14" href="#FNanchor_14_14" class="label">[14]</a> Dr. W. Blake Odgers, K.C., is the author of the
+standard work on libel and slander.</p></div>
+
+<div class="footnote"><p><a id="Footnote_15_15" href="#FNanchor_15_15" class="label">[15]</a> An insult to counsel may be punished as a contempt.</p></div>
+
+<div class="footnote"><p><a id="Footnote_16_16" href="#FNanchor_16_16" class="label">[16]</a> See Appendix C.</p></div>
+
+<div class="footnote"><p><a id="Footnote_17_17" href="#FNanchor_17_17" class="label">[17]</a> It may be noted that five of the signatories of the Declaration
+of Independence were Middle Temple barristers:
+Thomas McKean, Edward Rutledge, Thomas Lynch,
+Thomas Heyward and Arthur Midleton. With the exception
+of the first-named, all of these gentlemen were Representatives
+of South Carolina. Thomas McKean, by the way,
+wrote the Constitution of Delaware in a night, while Edward
+Rutledge drafted the greater part of the Constitution of
+South Carolina. The latter was chairman of the Committee
+of Five who drafted the first Constitution of the United
+States.</p></div>
+
+<div class="footnote"><p><a id="Footnote_18_18" href="#FNanchor_18_18" class="label">[18]</a> “Edward Frederic Mylius is fortunate, living as he does
+in times when justice is tempered by extreme leniency. In
+former times the Kings of England had no lack of power in
+dealing with those who slandered Royalty. To cite only
+one instance, King Henry the First had been lampooned
+by a former friend, Luke de Barre, a troubadour knight.
+The unfortunate man was condemned to lose his eyes on the
+scaffold by the hands of the public executioner.</p>
+
+<p>“Many intercessions were made in his favour, but the
+King replied:—‘No, for this man, being a wit, a bard, and a
+minstrel forsooth, hath composed many ribald songs against
+me and sung them to raise the horse-laugh of mine enemies.
+Now it hath pleased God to deliver him into my hands,
+punished he shall be to deter others from the like petulance.’
+It is not quite clear whether the sentence was carried out
+as arranged. Some chroniclers assert that De Barre’s
+eyes were in fact put out, and that he died of the torture,
+while others say that he cheated the executioner by dashing
+out his brains against the stone wall of his prison. In either
+case the incident shows that to libel Royalty in the twelfth
+century was a perilous venture.”</p></div>
+
+<div class="footnote"><p><a id="Footnote_19_19" href="#FNanchor_19_19" class="label">[19]</a> “Our legal system is apt to give wholly disproportionate
+importance to a large class of libel and slander actions
+intrinsically of small account. We provide first-rate
+machinery for the determination of second-rate or even
+trumpery questions; disputes not much above the level of
+those which a County Court judge settles once for all in a
+rough and ready manner in ten minutes or a quarter of an
+hour. It is true that there are libels of a cruel and malignant
+character, more mischievous than most crimes;
+calumnies industriously circulated as to the private lives of
+innocent men and women; fictions or distortions of facts
+for which no punishment is excessive. For such libels
+the criminal law is the proper remedy. But for a large
+mass of libels and slanders which engage the time of High
+Court judges and special juries the legal machinery provided,
+criminal or civil, is altogether out of proportion to their
+importance.”—<i>The Times.</i></p></div>
+</div>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum" id="Page_97">[97]</span></p>
+
+
+  <h2 class="nobreak" id="CHAPTER_V">
+    CHAPTER V
+    </h2>
+<p class='chap-title'>    IMPRISONMENT FOR DEBT
+  </p>
+</div>
+
+
+<p>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.</p>
+
+<p>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
+<span class="pagenum" id="Page_98">[98]</span>
+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 <i>per annum</i>. 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
+<span class="pagenum" id="Page_99">[99]</span>
+and terror, amusing to the debtor if his
+<i>sang froid</i> 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!)</p>
+
+<p>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
+<span class="pagenum" id="Page_100">[100]</span>
+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.</p>
+
+<p>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.</p>
+
+<p>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
+<span class="pagenum" id="Page_101">[101]</span>
+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.”</p>
+
+<p>In the same report, Judge Henry Mason
+<span class="pagenum" id="Page_102">[102]</span>
+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
+<span class="pagenum" id="Page_103">[103]</span>
+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.”</p>
+
+<p>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.”</p>
+
+<p>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.</p>
+
+<p>Judge Cyril Dodd, Circuit No. 16, stated
+<span class="pagenum" id="Page_104">[104]</span>
+in his evidence that he desired the abolition of
+imprisonment for debt; he also recommended
+the widening of the present definition of crime.</p>
+
+<p>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
+<span class="pagenum" id="Page_105">[105]</span>
+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.”</p>
+
+<p>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.”</p>
+
+<p>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.”</p>
+
+<p>Judge William Stevenson Owen (now
+deceased), Circuit 24, favoured the total
+<span class="pagenum" id="Page_106">[106]</span>
+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.”</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>Judge William Wightman Wood, of Circuit
+<span class="pagenum" id="Page_107">[107]</span>
+20, another witness, favoured the abolition
+of imprisonment.</p>
+
+<p>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>i.e.</i>, 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,
+<span class="pagenum" id="Page_108">[108]</span>
+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.</p>
+
+<p>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.”</p>
+
+<p><span class="pagenum" id="Page_109">[109]</span></p>
+
+<p>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.</p>
+
+<p>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 <i>praestendum</i>
+orders (<i>i.e.</i>, orders by a judge to perform
+an act).</p>
+
+<p>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 <i>per se</i> 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.”</p>
+
+<p><span class="pagenum" id="Page_110">[110]</span></p>
+
+<p>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 <i>quasi</i>-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,
+<span class="pagenum" id="Page_111">[111]</span>
+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.</p>
+
+<p>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
+<span class="pagenum" id="Page_112">[112]</span>
+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.</p>
+
+<p>“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
+<span class="pagenum" id="Page_113">[113]</span>
+them in proportion to their debts; but some
+writers contend that the words <i>partes secanto</i>
+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.”&#x2060;<a id="FNanchor_20_20" href="#Footnote_20_20" class="fnanchor">[20]</a></p>
+
+<p>One can scarcely leave a chapter on civil—as
+opposed to criminal [law]—coercion,
+without some mention of the writ of <i>ne exeat
+regno</i>. 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
+<span class="pagenum" id="Page_114">[114]</span>
+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 <i>ne exeat regno</i>, 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 <i>ex
+debito justitiae</i> (and I do not say it is so bound),
+is bound in the exercise of a sound discretion
+<span class="pagenum" id="Page_115">[115]</span>
+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.”&#x2060;<a id="FNanchor_21_21" href="#Footnote_21_21" class="fnanchor">[21]</a></p>
+
+<p>Imprisonment for debt is nearly as old as
+the hills—under the Roman <i>régime</i>, 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.</p>
+
+<div class='footnotes'>
+<h3 id="FOOTNOTES_5">
+  FOOTNOTES
+</h3>
+
+<div class="footnote"><p><a id="Footnote_20_20" href="#FNanchor_20_20" class="label">[20]</a> Lord Mackenzie.</p></div>
+
+<div class="footnote"><p><a id="Footnote_21_21" href="#FNanchor_21_21" class="label">[21]</a> <i>Oswald on Contempt, Committal and Attachment.</i></p></div>
+</div>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum" id="Page_116">[116]</span></p>
+
+
+  <h2 class="nobreak" id="CHAPTER_VI">
+    CHAPTER VI
+    </h2>
+<p class='chap-title'>    THE NEED FOR THE RIGHT OF PROPERTY IN
+    SURNAMES
+  </p>
+</div>
+
+
+<p>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>i.e.</i>, 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
+<span class="pagenum" id="Page_117">[117]</span>
+with goods or money on the strength of the
+success of the imposition?&#x2060;<a id="FNanchor_22_22" href="#Footnote_22_22" class="fnanchor">[22]</a></p>
+
+<p>Many Jews and other aliens on becoming
+established in this country drop their
+patronymics, which may end with a “stein”
+<span class="pagenum" id="Page_118">[118]</span>
+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, <i>primâ facie</i>, to business relations,
+whereas “Harris” or “Langton” may be.</p>
+
+<p>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
+<span class="pagenum" id="Page_119">[119]</span>
+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.&#x2060;<a id="FNanchor_23_23" href="#Footnote_23_23" class="fnanchor">[23]</a></p>
+
+<p>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—<i>invisible</i>! To descend to the lower
+branches of struggle for gain by imposture,
+we find “Claude Churchill” lending
+money, practically without interest, “Edwin
+<span class="pagenum" id="Page_120">[120]</span>
+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.
+<span class="pagenum" id="Page_121">[121]</span>
+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 <i>alias</i> or fictitious surname, much
+deception, or fraud, or improper profit almost
+amounting to fraud, frequently, if not
+<span class="pagenum" id="Page_122">[122]</span>
+generally, results. This is stating the case
+in a very mild way.</p>
+
+<p>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>i.e.</i>, permissible
+only where the name desired is the name
+of an ascendant.&#x2060;<a id="FNanchor_24_24" href="#Footnote_24_24" class="fnanchor">[24]</a> If some of these suggestions
+were carried out, there would be no
+more mad hunts for practically anonymous
+<span class="pagenum" id="Page_123">[123]</span>
+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
+<span class="pagenum" id="Page_124">[124]</span>
+falsely ambitious, who attracts hostile attention,
+with some substantial justification, be
+it confessed.</p>
+
+<p>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 <i>bourgeois</i>
+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
+<span class="pagenum" id="Page_125">[125]</span>
+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.</p>
+
+<p>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.&#x2060;<a id="FNanchor_25_25" href="#Footnote_25_25" class="fnanchor">[25]</a></p>
+
+<p><span class="pagenum" id="Page_126">[126]</span></p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>“Counsel: ‘But at the time the cheque
+was drawn the plaintiffs were not a limited
+<span class="pagenum" id="Page_127">[127]</span>
+company, and the title therefore was not
+their real title.’</p>
+
+<p>“‘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!’</p>
+
+<p>“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.</p>
+
+<p>“The decision eventually went in favour
+of the defendants, who had paid the cheque
+to one of the plaintiffs.</p>
+
+<p>“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.</p>
+
+<p>“A witness named Fitz-Clarence was called
+in another case.</p>
+
+<p>“‘Quite a Saturday name,’ observed
+counsel.</p>
+
+<p>“‘All the Burkes and Debretts come here
+<span class="pagenum" id="Page_128">[128]</span>
+on Saturday,’ replied his lordship, amid
+laughter.”&#x2060;<a id="FNanchor_26_26" href="#Footnote_26_26" class="fnanchor">[26]</a></p>
+
+<p>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.</p>
+
+<p>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
+<span class="pagenum" id="Page_129">[129]</span>
+an <i>alias</i>. Writers are given to the assumption
+of the <i>nom de plume</i>. Beaumarchais, the hardy
+author of <i>Le Barbier de Seville</i> and <i>Le Mariage
+de Figaro</i>, 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 <i>alias</i> 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 <i>noms de guerre</i> 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 <i>his</i> “Winston,” for “Winston”
+is said to be his name.</p>
+
+<p>Juggling with names should be made a
+<span class="pagenum" id="Page_130">[130]</span>
+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.&#x2060;<a id="FNanchor_27_27" href="#Footnote_27_27" class="fnanchor">[27]</a> 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.</p>
+
+<div class='footnotes'>
+<h3 id="FOOTNOTES_6">
+  FOOTNOTES
+</h3>
+
+<div class="footnote"><p><a id="Footnote_22_22" href="#FNanchor_22_22" class="label">[22]</a> “Application was made at Clerkenwell, to-day, for
+process against a man calling himself ‘Viscount Mackenzie,’
+for deserting his wife and for obtaining credit by false pretences
+from his landlady, Mdme. Gabrielle Suffolk, of
+Ampthill Square, St. Pancras.</p>
+
+<p>“It was stated that the man had represented himself to
+be ‘Viscount Mackenzie, of Mackenzie, in Ross-shire,
+Duke of St. Omars (a surgeon-general in H.M. Army).’</p>
+
+<p>“Mr. Bros heard the wife first.</p>
+
+<p>“‘Viscountess Mackenzie,’ as the landlady called her,
+said she was married to the man on January 7th, and he
+left her ‘four weeks to-day.’</p>
+
+<p>“<i>Mr. Bros</i>: ‘Do you know his address?’—‘No, sir.’</p>
+
+<p>“<i>Mr. Bros</i>: ‘Then I’m afraid I cannot help you.’</p>
+
+<p>“The magistrate then called the landlady.</p>
+
+<p>“She said she knew the man as ‘Viscount Mackenzie,’
+and the wife as ‘the Duchess.’</p>
+
+<p>“<i>Mr. Bros</i>: ‘You didn’t believe that, did you?’</p>
+
+<p>“<i>The landlady</i>: ‘He said he was a surgeon-general in
+H.M. Army, and would get his pension at the end of the
+month.’</p>
+
+<p>“It was stated that the ‘Viscount’ had left his will
+behind him, and the magistrate remarked that that did not
+help him.</p>
+
+<p>“This will was produced in court the previous afternoon,
+when the wife summoned the landlady for detaining her
+property, and stated that her noble husband had induced
+her to part with all her money. The will gave and bequeathed
+to ‘the Viscountess’ £6,000 a year for life and
+‘all the family plate.’</p>
+
+<p>“On the sworn evidence of the landlady, a warrant was
+granted.”—<i>Evening newspaper.</i></p></div>
+
+<div class="footnote"><p><a id="Footnote_23_23" href="#FNanchor_23_23" class="label">[23]</a> “Noblemen, and their children, carry about with them,
+in their very titles, a sufficient notification of their rank.
+Nay, their very names (and this applies also to the children
+of many untitled houses) are often, to the English ear,
+adequate exponents of high birth, or descent. Sackville,
+Manners, Fitzroy, Paulet, Cavendish, and scores of others,
+tell their own tale.... Such persons, therefore, find everywhere
+a due sense of their claims already established,
+except among those who are ignorant of the world, by
+virtue of their own obscurity.”—De Quincey, <i>Confessions
+of an Opium-Eater</i>.</p></div>
+
+<div class="footnote"><p><a id="Footnote_24_24" href="#FNanchor_24_24" class="label">[24]</a> Or where the change is to be effected by Royal License,
+when the assumption of the name and arms might be
+prevented.</p></div>
+
+<div class="footnote"><p><a id="Footnote_25_25" href="#FNanchor_25_25" class="label">[25]</a> A solicitor on the Rolls cannot change his name except
+by the leave of the Master of the Rolls, who requires
+either a Royal License or a deed poll enrolled plus
+advertisements. (A note by Mr. Cozens-Hardy, the well-known
+barrister, who is, of course, the son of the Master
+of the Rolls, the Right Hon. Sir Herbert Cozens-Hardy.)</p></div>
+
+<div class="footnote"><p><a id="Footnote_26_26" href="#FNanchor_26_26" class="label">[26]</a> Sunday newspaper.</p></div>
+
+<div class="footnote"><p><a id="Footnote_27_27" href="#FNanchor_27_27" class="label">[27]</a> Mr. Samuel Beach Chester is the only child of the eldest
+(married) son, the late Captain Paul Townsend Jones,
+Jones’ Independent Battery, Pennsylvania Artillery, of
+the late Rev. Samuel Beach Jones, D.D., of Bridgeton,
+New Jersey, a trustee of Princeton University, and a
+graduate of Princeton and Yale, who married the eldest
+child (all daughters) of the Rev. John Chester, head of the
+Wethersfield branch of the Chesters of Blaby in Leicestershire.
+The Chesters of Wethersfield stood at the head of
+affairs in Connecticut in the 17th, 18th, and (early part of
+the) 19th centuries. By order of the New York Supreme
+Court, 1901, Mr. Chester assumed the maiden name of his
+grandmother, Sarah Ralston Chester. Mr. William Chester
+represents the junior male line and Mr. Beach Chester the
+senior female line, genealogically, at the present time.
+The Chesters of Wethersfield, Connecticut, are not related
+to any other family of the same name established in Connecticut
+or elsewhere in the United States.</p></div>
+</div>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum" id="Page_131">[131]</span></p>
+
+
+  <h2 class="nobreak" id="CHAPTER_VII">
+    CHAPTER VII
+    </h2>
+<p class='chap-title'>
+    LITERARY CENSORSHIP
+  </p>
+</div>
+
+
+<p>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
+<span class="pagenum" id="Page_132">[132]</span>
+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 <i>métier</i> the more trying.
+It is more than trying; it is unfair.</p>
+
+<p>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,
+<span class="pagenum" id="Page_133">[133]</span>
+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 <i>risqué</i>
+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.</p>
+
+<p>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
+<span class="pagenum" id="Page_134">[134]</span>
+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.</p>
+
+<p>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 <i>in loco parentis</i>. 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.</p>
+
+<p>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
+<span class="pagenum" id="Page_135">[135]</span>
+above referred to) largely influenced by the
+gross character of the books. Nevertheless,
+the printer’s imprint should always appear.</p>
+
+<p>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.</p>
+
+<p>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—“<i>The Hazard of the Die</i>”—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.</p>
+
+<p>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
+<span class="pagenum" id="Page_136">[136]</span>
+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.</p>
+
+<p>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 <i>quasi</i>-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 <i>ennuis</i>
+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
+<span class="pagenum" id="Page_137">[137]</span>
+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, <i>per se</i>, proper upbringing
+should turn it against depravity, one almost
+fails to see.</p>
+
+<p>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.</p>
+
+<p>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
+<span class="pagenum" id="Page_138">[138]</span>
+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.</p>
+
+<p>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.</p>
+
+<p><span class="pagenum" id="Page_139">[139]</span></p>
+
+<p>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.</p>
+
+<p>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
+<span class="pagenum" id="Page_140">[140]</span>
+better adapted to the <i>métier</i> of a <i>cuisinière</i>.
+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 <i>raison d’être</i> is base.</p>
+
+<p>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
+<span class="pagenum" id="Page_141">[141]</span>
+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.</p>
+
+<p>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
+<span class="pagenum" id="Page_142">[142]</span>
+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.</p>
+
+<p>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
+<span class="pagenum" id="Page_143">[143]</span>
+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.</p>
+
+<p>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,
+<span class="pagenum" id="Page_144">[144]</span>
+at any rate) on the part of the
+censorial authority here advocated.</p>
+
+<p>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.</p>
+
+<p>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 <i>risqué</i>
+literature at the present day.</p>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum" id="Page_145">[145]</span></p>
+
+
+  <h2 class="nobreak" id="CHAPTER_VIII">
+    CHAPTER VIII
+    </h2>
+<p class='chap-title'>
+    CAPITAL PUNISHMENT, MURDER AND SUICIDE&#x2060;<a id="FNanchor_28_28" href="#Footnote_28_28" class="fnanchor">[28]</a>
+  </p>
+</div>
+
+
+<p>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 <i>crime passionel</i>. However,
+if <i>A</i> enters the bedroom of his wife and discovers
+this unfortunate woman with <i>B</i>, <i>in
+flagrante delicto</i>, to misuse an expression, and
+he shoots <i>B</i> on the spot, he stands a very good
+chance of escaping the supreme punishment of
+the law. But if <i>A</i>, on seeing his wife in the
+act of adultery with <i>B</i>, leaves the room, goes
+downstairs, obtains possession of his revolver,
+and then returns to kill <i>B</i>, the position is
+<span class="pagenum" id="Page_146">[146]</span>
+somewhat different. This particular example
+supplies evidence of <i>mens rea</i>, or criminal
+intent. <i>A</i> 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.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>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 <i>cause célèbre</i>
+<span class="pagenum" id="Page_147">[147]</span>
+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 <i>dénouement</i> was murder.
+<span class="pagenum" id="Page_148">[148]</span>
+The strict critic may say that Thaw should
+not have made such a marriage.</p>
+
+<p>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.</p>
+
+<p>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!).</p>
+
+<p><span class="pagenum" id="Page_149">[149]</span></p>
+
+<p>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.</p>
+
+<p>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,
+<span class="pagenum" id="Page_150">[150]</span>
+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
+<span class="pagenum" id="Page_151">[151]</span>
+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.</p>
+
+<p>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.
+<span class="pagenum" id="Page_152">[152]</span>
+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 <i>soi-disant</i> humanitarian, blindfolding
+could be adopted to ameliorate the condition
+of the condemned.</p>
+
+<p>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.</p>
+
+<p>A paragraph of some interest may be
+<span class="pagenum" id="Page_153">[153]</span>
+taken from the current press. It is headed,
+<i>Optional Suicide: Choice for Murderers</i>, 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
+<span class="pagenum" id="Page_154">[154]</span>
+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.”</p>
+
+<p>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
+<span class="pagenum" id="Page_155">[155]</span>
+requirements of the Nevada Legislature?&#x2060;<a id="FNanchor_29_29" href="#Footnote_29_29" class="fnanchor">[29]</a>
+Particularly, as the shooting could be done
+by the soldiery, or by marksmen other than
+“officers of the law.”</p>
+
+<p>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!</p>
+
+<p>To turn from murder to suicide and attempted
+<span class="pagenum" id="Page_156">[156]</span>
+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.&#x2060;<a id="FNanchor_30_30" href="#Footnote_30_30" class="fnanchor">[30]</a> Suicide
+attracts numberless persons, excited by
+neurotic impulses. Sometimes a woman,
+<i>enceinte</i> 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
+<span class="pagenum" id="Page_157">[157]</span>
+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.</p>
+
+<p>Suicide is not always incomprehensible,
+<span class="pagenum" id="Page_158">[158]</span>
+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, <i>primâ facie</i>, 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 <i>quasi</i>-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, <i>idée fixe</i>, in an acute form.
+<span class="pagenum" id="Page_159">[159]</span>
+This may technically justify the insanity
+verdict, but it is questionable whether anything
+else would, if one makes allowance for
+class and ignorance.</p>
+
+<p>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.</p>
+
+<p>But the greatest anomaly of all in relation
+<span class="pagenum" id="Page_160">[160]</span>
+to the verdicts of coroners’ juries is the
+murder verdict at an inquest. Why should
+a perfectly irresponsible body, for a coroner’s
+jury <i>is</i> an irresponsible body in deciding the
+guilt of an accused murderer, find <i>A</i> guilty
+of the wilful murder of his wife <i>B</i> before the
+Grand Jury&#x2060;<a id="FNanchor_31_31" href="#Footnote_31_31" class="fnanchor">[31]</a> has even found a true bill
+against <i>A</i>? 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
+<span class="pagenum" id="Page_161">[161]</span>
+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, <i>alias</i> “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
+<span class="pagenum" id="Page_162">[162]</span>
+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.</p>
+
+<p>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.
+<span class="pagenum" id="Page_163">[163]</span>
+To point out a further anomaly, <i>i.e.</i>, 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 <i>found
+guilty</i> of the wilful murder of his wife, Cora
+<span class="pagenum" id="Page_164">[164]</span>
+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.</p>
+
+<p>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.</p>
+
+<div class='footnotes'>
+<h3 id="FOOTNOTES_7">
+  FOOTNOTES
+</h3>
+
+<div class="footnote"><p><a id="Footnote_28_28" href="#FNanchor_28_28" class="label">[28]</a> See Appendix D.</p></div>
+
+<div class="footnote"><p><a id="Footnote_29_29" href="#FNanchor_29_29" class="label">[29]</a> Some such scheme appears to have been adopted since
+this chapter was written.</p></div>
+
+<div class="footnote"><p><a id="Footnote_30_30" href="#FNanchor_30_30" class="label">[30]</a> “No fewer than four persons were charged at Marylebone
+police-court this afternoon with attempted suicide.</p>
+
+<p>“The first was a domestic servant, who was found lying
+in the road, having taken poison.</p>
+
+<p>“The Rev. Mr. Shaw, of Dulwich, said she had been in
+his service sixteen months, but left a week ago to enter the
+service of the sister of a great friend of hers. The situation
+was a great disappointment to her, however, for ‘she was
+accustomed to be in rather refined service,’ and she complained
+that she was unable to wear any of her new frocks.
+The result was that she left, and her great friend had thrown
+her over; hence her position in the dock.</p>
+
+<p>“Mr. Paul Taylor remanded her, saying he had never
+known a woman to attempt suicide for less adequate reasons.</p>
+
+<p>“The other defendants were men. Two were remanded,
+and the third was discharged, as he denied that he wanted
+to kill himself—he bought the laudanum found on him for
+his teeth.”—<i>Current Evening Paper.</i></p></div>
+
+<div class="footnote"><p><a id="Footnote_31_31" href="#FNanchor_31_31" class="label">[31]</a> Reference to Grand Juries reminds one that the late
+Mr. Justice Stephen (Sir James Fitz-James Stephen) “expressed
+his inability to understand why a man should be
+presumed to be innocent when a Grand Jury have sworn
+that they thought him guilty.” (Mr. A. T. Carter, D.C.L.)
+It has been pointed out to the writer, by the way, that the
+members of a Grand Jury sometimes throw out a bill, because,
+“Otherwise, what are we here for?” In other
+words, without applying any very special discrimination,
+they take upon themselves a function opposed to the expert
+judgment of the committing magistrate, who has heard
+all the evidence.</p></div>
+</div>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum" id="Page_165">[165]</span></p>
+
+
+  <h2 class="nobreak" id="CHAPTER_IX">
+    CHAPTER IX
+    </h2>
+<p class='chap-title'>    LEGITIMATION&#x2060;<a id="FNanchor_32_32" href="#Footnote_32_32" class="fnanchor">[32]</a>
+  </p>
+</div>
+
+
+<p>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 <i>legitimatio per
+subsequens matrimonium</i> often rights a wrong
+and does justice to those who are kept out of
+a natural right by the unnatural state of the
+law.</p>
+
+<p>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.</p>
+
+<p>In these times when fact rules, not the
+<span class="pagenum" id="Page_166">[166]</span>
+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
+<span class="pagenum" id="Page_167">[167]</span>
+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.</p>
+
+<p>In his <i>Roman Law</i>, 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 <i>per subsequens matrimonium</i>
+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 <i>ingenua</i>, or free-born,
+and the man had not already children of a
+<span class="pagenum" id="Page_168">[168]</span>
+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 <i>ingenua</i> or <i>libertina</i>. 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 <i>per subsequens matrimonium</i>
+was strictly confined to the children
+of a concubine, and did not extend to any other
+description of bastards.... Another kind of
+legitimation, <i>per oblationem curiæ</i>, was introduced
+by Theodosius II., <span class="allsmcap">A.D.</span> 445. As the
+duties of a <i>decurio</i> were very onerous, and
+accompanied with risk, a natural son who
+undertook the office was thereby rendered
+legitimate. A natural daughter who married
+a <i>decurio</i> had the same privilege. Finally,
+Justinian added a third species of legitimation,
+<i>per rescriptum principis</i>, when the emperor
+declared natural children legitimate upon
+<span class="pagenum" id="Page_169">[169]</span>
+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 <i>ab intestato</i>.... 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,
+<span class="pagenum" id="Page_170">[170]</span>
+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 (<i>ante natus</i>) 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 <i>in
+consequence of the equity and expedience of
+the rule itself</i>.&#x2060;<a id="FNanchor_33_33" href="#Footnote_33_33" class="fnanchor">[33]</a> 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
+<span class="pagenum" id="Page_171">[171]</span>
+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
+<span class="pagenum" id="Page_172">[172]</span>
+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
+<span class="pagenum" id="Page_173">[173]</span>
+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
+<i>ab intestato</i>, and could not be deprived of
+that right by the legitimation of the natural
+son arising from the <i>second</i> marriage.”</p>
+
+<p>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 <i>conceived</i> 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
+<span class="pagenum" id="Page_174">[174]</span>
+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 <i>legitimatio
+per subsequens matrimonium</i>.</p>
+
+<p>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
+<span class="pagenum" id="Page_175">[175]</span>
+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.</p>
+
+<div class='footnotes'>
+<h3 id="FOOTNOTES_8">
+  FOOTNOTES
+</h3>
+
+<div class="footnote"><p><a id="Footnote_32_32" href="#FNanchor_32_32" class="label">[32]</a> See Appendix E.</p></div>
+
+<div class="footnote"><p><a id="Footnote_33_33" href="#FNanchor_33_33" class="label">[33]</a> Mr. Chester’s italics.</p></div>
+</div>
+
+
+<h3 id="Note_in_Connection_with_the_next_Chapter">
+  <span class="smcap">Note in Connection with the next Chapter.</span>
+</h3>
+
+<blockquote>
+<p>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:</p>
+
+<p>“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.</p>
+
+<p>“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.”—<i>Daily Mail</i>, Sept. 29, 1911.</p>
+</blockquote>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum" id="Page_176">[176]</span></p>
+
+
+  <h2 class="nobreak" id="CHAPTER_X">
+    CHAPTER X
+    </h2>
+<p class='chap-title'>    CRIMINAL APPEAL AND THE BALL CASE
+  </p>
+</div>
+
+
+<p>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.</p>
+
+<p>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, <i>or other person claiming the privilege
+of peerage</i>, 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
+<span class="pagenum" id="Page_177">[177]</span>
+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.</p>
+
+<p>The case of R. <i>v.</i> 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.
+<i>The Times</i> newspaper for December 16, 1910,
+reports the case in the following words:
+“HOUSE OF LORDS. Criminal Appeal.
+Director of Public Prosecutions <i>v.</i> William
+Henry Ball.—Director of Public Prosecutions
+<i>v.</i> Edith Lilian Ball. (<i>Before the</i>
+Lord Chancellor, Earl of Halsbury, Lord
+Ashbourne, Lord Alverstone, Lord Atkinson,
+Lord Gorrell, Lord Shaw <i>of</i> Dunfermline,
+Lord Mersey, <i>and</i> 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,
+<span class="pagenum" id="Page_178">[178]</span>
+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 <i>The
+Times</i> 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
+<i>mens rea</i>, 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
+<span class="pagenum" id="Page_179">[179]</span>
+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.”</p>
+
+<p>In <i>The Times</i> for December 20, 1910, the
+same case is again reported, this time in its
+aspect as a novelty. <i>The Times</i>, after giving
+the heading, “COURT OF CRIMINAL
+APPEAL. House of Lords’ Reversal of
+Criminal Appeal. (<i>Before the</i> Lord Chief
+Justice <i>of</i> England, Mr. Justice Pickford,
+<i>and</i> 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
+<span class="pagenum" id="Page_180">[180]</span>
+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
+<span class="pagenum" id="Page_181">[181]</span>
+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.
+<span class="pagenum" id="Page_182">[182]</span>
+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 <i>fiat</i> 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,
+<span class="pagenum" id="Page_183">[183]</span>
+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.”</p>
+
+<p>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
+<span class="pagenum" id="Page_184">[184]</span>(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.</p>
+
+<p>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
+<i>entr’acte</i>. 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.</p>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum" id="Page_185">[185]</span></p>
+
+
+  <h2 class="nobreak" id="CHAPTER_XI">
+    CHAPTER XI
+    <br>
+    CLIENT, SOLICITOR AND COUNSEL
+  </h2>
+</div>
+
+
+<p>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 <i>esprit de
+corps</i> and attack his own training in the
+traditions of a great <i>métier</i>. 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.</p>
+
+<p>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.</p>
+
+<p><span class="pagenum" id="Page_186">[186]</span></p>
+
+<p>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
+<span class="pagenum" id="Page_187">[187]</span>
+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,
+<span class="pagenum" id="Page_188">[188]</span>
+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
+<span class="pagenum" id="Page_189">[189]</span>
+are many worthy exceptions; still, there is
+something in the profession of a solicitor
+which seems to produce certain generic
+failings.&#x2060;<a id="FNanchor_34_34" href="#Footnote_34_34" class="fnanchor">[34]</a> 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
+<span class="pagenum" id="Page_190">[190]</span>
+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 <i>primâ facie</i> 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
+<span class="pagenum" id="Page_191">[191]</span>
+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.</p>
+
+<p>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
+<span class="pagenum" id="Page_192">[192]</span>
+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.</p>
+
+<p>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
+<span class="pagenum" id="Page_193">[193]</span>
+his clients as a medical practitioner receives
+his patients.</p>
+
+<p>In France, there is the distinction between
+the <i>avocat</i> (or barrister) and the <i>avoué</i> (or
+solicitor), and yet there appears to be no
+hindrance upon the freedom of the <i>avocat</i> 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
+<span class="pagenum" id="Page_194">[194]</span>
+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
+<span class="pagenum" id="Page_195">[195]</span>
+recommend it, particularly in these days of
+practical thought.</p>
+
+<p>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.</p>
+
+<p>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
+<span class="pagenum" id="Page_196">[196]</span>
+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.</p>
+
+<p>It is interesting to note that there was a
+division of lawyers into a first order, of
+<i>advocati</i>, and into a second order, of <i>formularii</i>,
+under the Roman Empire.</p>
+
+<p>Members of the English Bar, it may be
+pointed out, cannot sue for fees, “although
+there be an express contract to pay them.”</p>
+
+<p>“In France, ancient laws and decisions,
+as well as the opinions of the doctors, allowed
+an action to advocates to recover their fees;
+<span class="pagenum" id="Page_197">[197]</span>
+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.)</p>
+
+<p>So far as large fees are concerned, the £8,000
+paid to Sir Thomas Wilde (afterwards Lord
+Truro) in the case of Small <i>v.</i> 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.</p>
+
+<p>“In the sixteenth century, and for some
+generations previous, it was customary for
+clients to provide food and drink for their
+counsel. Here is an extract from a bill of
+costs made in the reign of Edward IV.—‘For
+a breakfast at Westminster spent on our
+counsel, 1<i>s.</i> 6<i>d.</i>; for boat hire in and out and
+a breakfast for two days, 1<i>s.</i> 6<i>d.</i>’ Another
+item, from the parish books of St. Margaret’s,
+Westminster, runs thus—Also paid to
+Roger Fylpott, learned in the law, for his
+counsel given 3<i>s.</i> 8<i>d.</i>, with 4<i>d.</i> for his dinner....
+When Sir Thomas Moore lived in
+Bucklersbury, he ‘gained, without grief, not
+so little as 400<i>l.</i> by the year. Considering
+<span class="pagenum" id="Page_198">[198]</span>
+the relative profits of the Bar, and the value
+of money,’ says Lord Campbell, ‘this income
+probably indicated as high a station as
+10,000<i>l.</i> a year at the present day.’ In the
+reign of James I., the nominal salaries paid to
+the judges and Crown lawyers were extremely
+low; their real incomes were derived from
+certain fees which had to be paid into Court
+before any suitor could obtain a hearing.
+‘Francis Bacon,’ says Mr. Hepworth Dixon,
+‘valued his place as Attorney-General at
+6,000<i>l.</i> a year, of which the King paid him
+only 81<i>l.</i> 6<i>s.</i> 8<i>d.</i>.’ Mr. Dixon goes on to
+mention several similar instances, adding,
+‘Yet each of these great lawyers had
+given up a lucrative practice at the Bar.
+After their promotion to the Bench they
+lived in good houses, kept princely state,
+gave dinners and masques, made presents
+to the King, accumulated goods and lands.’
+Sir Edward Coke had made a still larger
+income as Attorney-General, the fees from
+his private and official practice amounting
+to 7,000<i>l.</i> 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
+<span class="pagenum" id="Page_199">[199]</span>
+a hundred years the value of money had
+enormously declined, or Coke was making
+an income far exceeding anything attainable
+at the present day. In his survey of the
+state of England in 1685, Lord Macaulay
+says:—‘A thousand a year was thought a
+large income for a barrister; 2,000<i>l.</i> a year
+was hardly to be made in the Court of King’s
+Bench, except by Crown lawyers.’ Mr.
+Jeaffreson (in his <i>Book about Lawyers</i>) impugns
+the accuracy of this statement, holding that
+the former part of it is based on a passage in
+<i>Pepys’s Diary</i>. As long ago as 1668, the
+Admiralty was a favourite target for Parliamentary
+orators to shoot at, and Mr. Pepys,
+after priming himself with good liquor, made
+such a spirited speech in behalf of his department
+that his friends complimented him
+hugely, assuring him that if he would but
+put on a gown and plead at the Chancery
+Bar, he could not get less than 1,000<i>l.</i> 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
+<span class="pagenum" id="Page_200">[200]</span>
+placed a barrister in the second rank of the
+unquestionably successful followers of the
+law. Somers was thought a fortunate and
+rising counsellor when he enjoyed Lord Chancellor
+Nottingham’s favour, and made 700<i>l.</i>
+a year.’ But the credit of the second part
+of Lord Macaulay’s statement is certainly
+shaken by an examination of the fee-book
+of Sir Francis Winnington, who was Solicitor-General
+to Charles II. In 1673 he received
+3,371<i>l.</i>; in 1674, 3,560<i>l.</i>; and in 1675—the
+first year of his tenure of the Solicitor-General’s
+office—4,066<i>l.</i>, of which only 429<i>l.</i>
+were office fees. Lord Keeper North made
+7,000<i>l.</i> 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
+<span class="pagenum" id="Page_201">[201]</span>
+this flash coin again into circulation. The
+worthy Judge’s virtue was emphatically its
+own reward. He had gathered together a
+vast heap of this spurious coin, when some
+thieves broke into his house, and contentedly
+carried it off, believing that they were helping
+themselves to his hoarded treasure. The
+practice of the Bar does not appear to have become
+more lucrative in the reign of George II.
+than it was many years earlier. During
+the last year of his tenure of the Solicitor-Generalship,
+Charles Yorke earned 7,322<i>l.</i>
+Lord Eldon’s fee-book shows a great advance.
+In 1794, he received 11,592<i>l.</i>; in 1795,
+11,149<i>l.</i>; in 1796, 12,140<i>l.</i> Previous to
+Erskine’s elevation to the Bench, he received
+on an average twelve special retainers in
+the year, from which he gained at least
+3,600<i>l.</i> Elsewhere (<i>Times Review</i>) we read
+of Erskine—‘It is four and a half years
+since he was called and in that time he
+has cleared 8,000<i>l.</i> or 9,000<i>l.</i>, besides paying
+his debts, obtaining a silk gown, and a
+business of at least 3,000<i>l.</i> a year.’”&#x2060;<a id="FNanchor_35_35" href="#Footnote_35_35" class="fnanchor">[35]</a></p>
+
+<p>In bringing this chapter to a close, it
+seems only fitting again to lay stress on the
+<span class="pagenum" id="Page_202">[202]</span>
+desirability of entitling a barrister to receive
+a client without the obligatory intervention
+of a third person, namely, a solicitor. An
+absurd anomaly, <i>the legal assumption that
+every man knows, or is expected to know, the
+law</i>, would perhaps be somewhat nearer
+fulfilment, if counsel were less unapproachable
+than they are to-day.</p>
+
+<blockquote>
+<p>[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 <i>rôle</i> of commentator
+rather than that of an advocate.]</p>
+</blockquote>
+
+
+<div class='footnotes'>
+<h3 id="FOOTNOTES_9">
+  FOOTNOTES
+</h3>
+
+<div class="footnote"><p><a id="Footnote_34_34" href="#FNanchor_34_34" class="label">[34]</a> In the current press for March 20, 1911, there is the
+following report, under the heading, “<i>Solicitors Struck off
+the Rolls</i>: King’s Bench Divisional Court.—Justices Ridley,
+Darling and Channell.... Upon the application of Mr.
+T. Payne, appearing for the Law Society, the following
+solicitors were ordered to be struck off the Rolls:—Patrick
+Burke, formerly of Bridge Street, Manchester; Francis
+Ernest Swann, formerly of Fleet Street; and John Milton
+Kerr, formerly of Halifax.... It appeared that the
+statutory committee found Patrick Burke guilty of misappropriation
+of clients’ money, including £1,000 out of
+£2,250, handed to him by the Mother Superior of the Order of
+St. Joseph, for the purpose of purchasing a house at Stafford
+for the sisters upon their expulsion from France. The papers
+were sent to the Public Prosecutor and a warrant was issued,
+but the solicitor could not be found.... Francis Ernest
+Swann, on October 11, 1910, was sentenced to five years’
+penal servitude at the Central Criminal Court for the
+fraudulent conversion of £1,700.... John Milton Kerr
+was convicted at Leeds in November last of the fraudulent
+conversion of £1,976, and sentenced to three years’ penal
+servitude.”</p></div>
+
+<div class="footnote"><p><a id="Footnote_35_35" href="#FNanchor_35_35" class="label">[35]</a> <i>Legal Anecdotes</i>, edited by John Timbs.</p></div>
+</div>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum" id="Page_203">[203]</span></p>
+
+
+  <h2 class="nobreak" id="CHAPTER_XII">
+    CHAPTER XII
+    </h2>
+<p class='chap-title'>    THE MORALITY BILL, ACCESSION AND
+    CORONATION DECLARATIONS AND OATHS
+  </p>
+</div>
+
+
+<h3>I. <span class="smcap">The Morality Bill</span></h3>
+
+<p>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.</p>
+
+<p>Such a provision could scarcely be conceived
+in any country other than England or
+<span class="pagenum" id="Page_204">[204]</span>
+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.</p>
+
+<p>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
+<span class="pagenum" id="Page_205">[205]</span>
+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 <i>mala quia prohibita</i> but <i>mala per
+se</i> 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
+<span class="pagenum" id="Page_206">[206]</span>
+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 <i>modus operandi</i>, generally, it
+will be necessary to narrate a passage from the
+history of one of these atrocious enterprises.
+<i>A</i>, a Paris shop-girl, aged 19, good-looking
+and well-formed, was induced to come to this
+country by <i>B</i>, 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. <i>A</i>, a
+perfectly respectable girl, agreed to come
+to London with <i>B</i>, 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 <i>B</i>.
+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 <i>B</i>. She, therefore, found herself on
+this first occasion, in the brightly-lighted
+<span class="pagenum" id="Page_207">[207]</span>
+promenade of a “music hall,” with many
+well-dressed men and women in her immediate
+vicinity. <i>B</i> 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 <i>B</i>.
+(<i>A</i> 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 <i>B</i>, that <i>B</i> kept a
+man in the background, and that she, <i>A</i>,
+was entirely helpless. At a subsequent
+meeting, <i>A</i> explained that <i>B</i> 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,
+<i>A</i>, 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 <i>A</i> had confided her story, went to
+the flat and found her missing. Her place
+had been filled by a newly-arrived <i>girl of
+fifteen</i>, procured by the same process from
+a Paris shop. On persistent enquiry, <i>A</i>
+<span class="pagenum" id="Page_208">[208]</span>
+was found in another room suffering from
+the consequences of an illegal operation,
+which had been forced upon her by the
+joint efforts of <i>B</i> and the male director of
+affairs.</p>
+
+<p>A maximum penalty of twelve months’
+hard labour for a scoundrel of the stamp of
+<i>B’s</i> “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.</p>
+
+<p>Section 10, of the Morality Bill, is worth
+transcribing in full.</p>
+
+<p>“(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
+<span class="pagenum" id="Page_209">[209]</span>
+of the offence, under the age of sixteen years,
+the maximum term of penal servitude which
+the court may inflict shall be ten years.</p>
+
+<p>“(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.</p>
+
+<p>“(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.”</p>
+
+<p>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
+<span class="pagenum" id="Page_210">[210]</span>
+is alleged in the indictment and proved that
+<i>the girl was, at the time of the commission
+of the offence, under the age of sixteen years,”
+etc.</i></p>
+
+<p>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:—</p>
+
+<p>“1. To raise ‘the age of consent’ to nineteen,
+the full offence to be felony, and the
+maximum punishment to be—(<i>a</i>) if the girl
+is any age under sixteen, penal servitude for
+ten years; (<i>b</i>) if the girl is over sixteen,
+penal servitude for five years.</p>
+
+<p>“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
+<span class="pagenum" id="Page_211">[211]</span>
+for five years, and for the misdemeanour
+imprisonment for two years.</p>
+
+<p>“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.</p>
+
+<p>“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.</p>
+
+<p>“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—(<i>a</i>) to all women of good
+character; (<i>b</i>) to all feeble-minded women
+<span class="pagenum" id="Page_212">[212]</span>
+and girls, whatever their character; (<i>c</i>) to
+all girls under the age of nineteen, whatever
+their character.</p>
+
+<p>“6. To make the offences specified in subsections
+(1) and (2) of section three of the
+Criminal Law Amendment Act, 1885 (<i>viz.</i>,
+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.</p>
+
+<p>“7. To make the offence specified in subsection
+(3) of section three of the Criminal
+Law Amendment Act, 1885 (<i>viz.</i>, the administration
+of drugs for an immoral purpose)
+felony for which the maximum punishment
+is to be penal servitude for ten years.</p>
+
+<p>“8. To make the offences specified in
+sections six, seven and eight of the Criminal
+Law Amendment Act, 1885 (<i>viz.</i>, 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
+<span class="pagenum" id="Page_213">[213]</span>
+penal servitude for five or ten years, according
+to the age of the girl.</p>
+
+<p>“9. To make an offence under section
+eleven of the Criminal Law Amendment Act,
+1885—(<i>a</i>) 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; (<i>b</i>) when
+committed with a person over that age,
+felony punishable with penal servitude for
+five years.</p>
+
+<p>“10. To make the keeping of premises for
+immoral purposes a misdemeanour punishable
+summarily with a fine of 50<i>l.</i> and imprisonment
+for six months, or upon conviction
+on indictment with a fine of 200<i>l.</i> and imprisonment
+for two years.</p>
+
+<p>“11. To make further provision for the
+suppression of indecent, immoral, and grossly
+offensive literature, pictures, advertisements,
+etc., the offence to be a misdemeanour punishable
+upon summary conviction with a fine
+of 50<i>l.</i> and imprisonment for six months, or
+upon conviction on indictment with a fine
+of 100<i>l.</i> and imprisonment for twelve months.
+Further powers are given to the Postmaster-General.</p>
+
+<p><span class="pagenum" id="Page_214">[214]</span></p>
+
+<p>“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.)</p>
+
+<p>“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.</p>
+
+<p>“14. To make ordinary cases of soliciting
+punishable summarily with a fine of 10<i>l.</i>, or
+with imprisonment for two months without
+the option of a fine, or upon a second or
+subsequent conviction with a fine of 30<i>l.</i>, or
+with imprisonment for six months without
+the option of a fine.</p>
+
+<p>“15. To extend to an amended form the
+provisions of the Children’s Act, 1908, relating
+<span class="pagenum" id="Page_215">[215]</span>
+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.</p>
+
+<p>“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.</p>
+
+<p>“17. To enable a person who is convicted
+on indictment of—(<i>a</i>) keeping premises for
+immoral purposes; or (<i>b</i>) living on a woman’s
+immoral earnings, being a male; or (<i>c</i>) persistently
+soliciting, being a male; or (<i>d</i>) selling
+indecent literature, etc., to be placed under
+police supervision, notwithstanding that such
+person has not been previously convicted of
+crime.</p>
+
+<p>“18. To require courts to recommend for
+expulsion aliens over the age of nineteen who
+are convicted of certain offences.</p>
+
+<p>“19. To restrict the punishment for rape
+to penal servitude for not more than ten
+<span class="pagenum" id="Page_216">[216]</span>
+years, except under certain aggravated circumstances,
+when the maximum term is to
+be fifteen years.</p>
+
+<p>“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.</p>
+
+<p>“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.</p>
+
+<p>“22. To restrict the punishment of young
+offenders for any of the above offences (including
+rape, incest, etc.) by providing—(<i>a</i>)
+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 (<i>b</i>) that
+no person under the age of eighteen shall be
+liable to penal servitude.</p>
+
+<p>“23. To render an indecent assault upon a
+<span class="pagenum" id="Page_217">[217]</span>
+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. (<i>Cf.</i> a similar provision
+in the Children’s Act, 1908.)</p>
+
+<p>“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
+<i>in camera</i>.</p>
+
+<p>“25. To repeal—(<i>a</i>) The Criminal Law
+Amendment Act, 1885; (<i>b</i>) The Vagrancy
+Act, 1898; (<i>c</i>) The Punishment of Incest
+Act, 1908; (<i>d</i>) Sections sixteen, seventeen,
+eighteen, one hundred and twenty-eight (2),
+of the Children Act, 1908, and the Second
+Schedule of that Act; (<i>e</i>) The Obscene
+Publications Act, 1857; (<i>f</i>) The Indecent
+Advertisements Act, 1889; (<i>g</i>) Other
+enactments.”</p>
+
+<p>The comprehensive nature of the Morality
+Bill can scarcely be doubted after a perusal
+of the foregoing <i>Memorandum</i>. There is no
+question whatever, the bulk of the provisions
+<span class="pagenum" id="Page_218">[218]</span>
+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.</p>
+
+<p>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.</p>
+
+<p>“8.—(1) If any male person shall obtain,
+or if any person of either sex shall aid or abet
+<span class="pagenum" id="Page_219">[219]</span>
+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.”</p>
+
+<p>There are two classes of enterprise which
+are peculiarly associated with what may be
+termed submissive immorality for the purpose
+<span class="pagenum" id="Page_220">[220]</span>
+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
+<span class="pagenum" id="Page_221">[221]</span>
+male <i>costumiers</i>—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.</p>
+
+<p>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.</p>
+
+
+<h3>II. <span class="smcap">Accession and Coronation
+Declarations and Oaths</span></h3>
+
+<p>This little work would, perhaps, be incomplete
+without some mention of the
+Accession Declarations and Coronation Oaths.</p>
+
+<p>It is first proposed to incorporate here the
+<span class="pagenum" id="Page_222">[222]</span>“Declarations of Heads of States” which
+declarations were collected and ordered to
+be printed by the House of Commons in
+May, 1901.</p>
+
+
+<h4 id="Great_Britain_and_Ireland">
+  <span class="smcap">Great Britain and Ireland.</span>
+</h4>
+
+<blockquote>
+<p>I. <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. &amp; M. sess. 2, c. 2</i>.</p>
+
+<p>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.</p>
+
+<p><span class="pagenum" id="Page_223">[223]</span></p>
+
+<p>II. <i>Oath with regard to the Church of Scotland,
+taken by the King at his first Council, on 23rd January,
+1901.</i></p>
+
+<p>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.</p>
+
+<p class='center'>
+  SO HELP ME GOD.
+</p>
+</blockquote>
+
+
+<h4 id="EMPIRE_OF_GERMANY">
+  EMPIRE OF GERMANY.
+</h4>
+
+<p>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
+<span class="pagenum" id="Page_224">[224]</span>
+of the Kingdom fixed and inviolable, and to
+govern in accordance with it and with the
+laws.”</p>
+
+
+<h4 id="UNITED_STATES">
+  UNITED STATES.
+</h4>
+
+<p>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:—</p>
+
+<blockquote>
+<p>“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.”</p>
+</blockquote>
+
+
+<h4 id="FRANCE">
+  FRANCE.
+</h4>
+
+<p>The President of the French Republic
+takes no Oath on the assumption of office.</p>
+
+
+<h4 id="AUSTRO-HUNGARY">
+  AUSTRO-HUNGARY.
+</h4>
+
+<p>The Emperor on his Accession takes the
+Solemn Oath in the presence of both houses
+of the Reichsrath—</p>
+
+<p>“To maintain the inviolability of the
+fundamental laws of the Kingdoms and
+<span class="pagenum" id="Page_225">[225]</span>
+Provinces represented in the Reichsrath and
+to rule in accordance with these and the
+common laws of the Empire.”</p>
+
+<p>The Oath taken by the present Emperor
+as King of Hungary:</p>
+
+<blockquote>
+<p>“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.”</p>
+</blockquote>
+
+<hr class='tb'>
+
+<p>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:—</p>
+
+<blockquote>
+<p>“I (<i>here insert the name of the Sovereign</i>) do
+solemnly and sincerely in the presence of God profess,
+<span class="pagenum" id="Page_226">[226]</span>
+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.”</p>
+</blockquote>
+
+<p>It is not uninteresting to learn the official
+position of the Sovereign as defined by
+statute (24 Henry VIII. c. 12.):</p>
+
+<blockquote>
+<p>“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:</p>
+
+<p>“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.</p>
+
+<p>“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.”</p>
+</blockquote>
+
+<p>The monarch—Henry VIII.—in whose reign
+the above was passed swore a Coronation
+<span class="pagenum" id="Page_227">[227]</span>
+Oath&#x2060;<a id="FNanchor_36_36" href="#Footnote_36_36" class="fnanchor">[36]</a> 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:—</p>
+
+<blockquote>
+<p>“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?”</p>
+
+<p><span class="pagenum" id="Page_228">[228]</span></p>
+
+<p><i>King</i>: “I grant and promise to keep them.”</p>
+
+<p>“Sir, will you keep peace and godly agreement
+(according to your power) both to God, Holy Church,
+the clergy, and the people?”</p>
+
+<p><i>King</i>: “I will keep it.”</p>
+
+<p>“Sir, will you (to your power) cause law, justice,
+and discretion in mercy and truth to be executed
+to your judgment?”</p>
+
+<p><i>King</i>: “I will.”</p>
+
+<p>“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?”</p>
+
+<p><i>King</i>: “I grant and promise so to do.”</p>
+</blockquote>
+
+<p>The Coronation Oath of His Majesty King
+George V.&#x2060;<a id="FNanchor_37_37" href="#Footnote_37_37" class="fnanchor">[37]</a> conformed to the requirements
+of the William and Mary legislation—which
+has regulated the subject ever since its
+passage, with trifling variations.</p>
+
+<p>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.</p>
+
+<p>“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.”&#x2060;<a id="FNanchor_38_38" href="#Footnote_38_38" class="fnanchor">[38]</a></p>
+
+<div class='footnotes'>
+<h3 id="FOOTNOTES_10">
+  FOOTNOTES
+</h3>
+
+<div class="footnote"><p><a id="Footnote_36_36" href="#FNanchor_36_36" class="label">[36]</a></p>
+
+<p class='center'>CORONATION OATH OF HENRY VIII</p>
+
+<p>“Will ye graunte and kepe to the people of England, the
+lawes and the custumes to theym, as of old tyme rightfull
+and deuoute Kings graunted, and the same ratefye and
+conserne by your othe and the spiritual lawes, custumes,
+and libertees graunted to the clergy and people by your
+noble predecessors and glorious King Seint Edward?”</p>
+
+<p><i>The King shall answer</i>: “I graunte and promytte.”</p>
+
+<p>“Ye shall kepe after your strength and power to the
+Church of God, to the clergy and the people, hoole pees and
+goodely concorde.”</p>
+
+<p><i>The King shall answer</i>: “I shall kepe.”</p>
+
+<p>“Ye shall make to be done after your strength and power
+equall and rightfull justice in all your Domes and Judgements,
+and discrecion with mercy and trouthe.”</p>
+
+<p><i>The King shall answer</i>: “I will do.”</p>
+
+<p>“Do ye graunte the rightfull lawes and custumes to be
+holden, and promytte after your strength and power such
+lawes, as to the honor of God shall be chosen by your people,
+by you to be strengthend and defended?”</p>
+
+<p><i>The King shall answer</i>: “I graunte and promytte.”</p></div>
+
+<div class="footnote"><p><a id="Footnote_37_37" href="#FNanchor_37_37" class="label">[37]</a> See Appendix F.</p></div>
+
+<div class="footnote"><p><a id="Footnote_38_38" href="#FNanchor_38_38" class="label">[38]</a> <i>Vide supra.</i></p></div>
+</div>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum" id="Page_229">[229]</span></p>
+
+
+  <h2 class="nobreak" id="APPENDIX_A">
+    APPENDIX A
+    </h2>
+<p class='chap-title'>    DIVORCE
+  </p>
+</div>
+
+
+<p>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 <i>The
+Times</i> report by accident, after the present
+author’s chapter on divorce had been written.</p>
+
+<blockquote>
+<p>“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.</p>
+
+<p>“The existing law suffered from three great
+defects:—</p>
+
+<p>“(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.
+<span class="pagenum" id="Page_230">[230]</span>
+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 <i>in
+formâ papueris</i> 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.</p>
+
+<p>“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.</p>
+
+<p>“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.</p>
+
+<p>“<i>The Chairman.</i>—Would you recapitulate the
+grounds which you then proposed?</p>
+
+<p><span class="pagenum" id="Page_231">[231]</span></p>
+
+<p>“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.</p>
+
+<p>“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.</p>
+
+<p>“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
+<span class="pagenum" id="Page_232">[232]</span>
+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.</p>
+
+<p>“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 <i>v.</i> 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
+<span class="pagenum" id="Page_233">[233]</span>
+legislation, however, always proceeded by piecemeal
+tentative advances, and probably, therefore, the
+simplest form of legislation would involve four
+advances:—(<i>a</i>) Equality of the sexes; (<i>b</i>) insanity
+a ground of separation; (<i>c</i>) all judicial separation to
+be capable of being turned into divorce <i>a vinculo</i>
+on the motion of either party at the expiration of
+two years; and (<i>d</i>) County Court jurisdiction.</p>
+
+<p>“<i>Judge Tindal Atkinson.</i>—Would you give no
+damages against the co-respondent?</p>
+
+<p>“<i>The Witness.</i>—I think it rather a barbarous
+custom.</p>
+
+<p>“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.</p>
+
+<p>“In reply to Mr. Burt, the witness said he did not
+think the Assize Courts a good alternative to the
+County Courts.”</p>
+</blockquote>
+
+
+<h3 id="Evidence_of_Mr_Atherley-Jones">
+  <span class="smcap">Evidence of Mr. Atherley-Jones.</span>
+</h3>
+
+<p>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 <i>a vinculo</i>. His view was that jurisdiction
+over certain areas might be conferred upon
+Judges selected from the County Courts.</p>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+  <h2 class="nobreak" id="APPENDIX_B">
+    APPENDIX B
+    </h2>
+<p class='chap-title'>    CORONERS
+  </p>
+</div>
+
+
+<p>The functions of a coroner are not, of course,
+peculiarly confined to death inquisitions. They
+extend to inquiries in connection with treasure
+<span class="pagenum" id="Page_234">[234]</span>
+trove, though the infrequency of such inquiries
+naturally helps to obscure the coroner’s dual
+<i>rôle</i> from the general public. The following
+paragraph supplies a recent instance of an
+inquiry in respect of treasure trove:</p>
+
+<h3><span class="smcap">An Inquest on Coins</span></h3>
+
+<blockquote>
+<p>“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.</p>
+
+<p>“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.”—<i>Daily Mail</i>, April 10th,
+1911.</p>
+</blockquote>
+
+<hr class="tb">
+
+<p>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:</p>
+
+<blockquote>
+<p>“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 <i>v.</i> London and North Western
+Railway, <i>The Times</i>, 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
+<span class="pagenum" id="Page_235">[235]</span>
+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.).</p>
+</blockquote>
+
+<hr class="tb">
+
+<p>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.</p>
+
+<blockquote>
+<p>“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.).</p>
+</blockquote>
+
+<hr class="tb">
+
+<p>The following newspaper report merits some
+further publicity:</p>
+
+<blockquote>
+<p>“At an inquest at Southwark, the need of an early
+operation in urgent circumstances was emphasised,
+<span class="pagenum" id="Page_236">[236]</span>
+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.</p>
+
+<p>“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.</p>
+
+<p>“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.</p>
+
+<p>“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.</p>
+
+<p>“The inquiry was adjourned to enable the father
+to find witnesses of his son’s accident.”</p>
+</blockquote>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum" id="Page_237">[237]</span></p>
+
+
+  <h2 class="nobreak" id="APPENDIX_C">
+    APPENDIX C
+    </h2>
+
+<p class='chap-title'>    <span class="smcap">The Royal Marriages Act</span>, 1772<br>
+    12 Geo. 3, c. 11</p>
+
+<p class='center mt1'>
+    <i>An Act for the better regulating of the future Marriages
+    of the Royal Family</i>
+  </p>
+</div>
+
+<p class='no-indent mt1'>
+<span class="smcap">Most Gracious Sovereign</span>,</p>
+
+<p class='double-indent'>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.</p>
+
+<p><span class="pagenum" id="Page_238">[238]</span></p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>3. And ... every person who shall knowingly
+and wilfully presume to solemnize or to assist or
+<span class="pagenum" id="Page_239">[239]</span>
+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.</p>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+  <h2 class="nobreak" id="APPENDIX_D">
+    APPENDIX D
+    </h2>
+<p class='chap-title'>    EXECUTIONS
+  </p>
+</div>
+
+
+<p>The accompanying letter from Mr. A. Chichele
+Plowden, one of the Metropolitan Police Magistrates,
+appeared in <i>The Times</i> for December 20,
+1910.</p>
+
+<blockquote>
+<h3>EXECUTIONS</h3>
+
+<p class='center mth'><i>To the Editor of The Times</i></p>
+
+<p class='mth'><span class="smcap">Sir</span>,—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—<i>viz.</i>,
+whether or not capital punishment by hanging is
+to be the last word of our civilization in dealing with
+the crime of murder.</p>
+
+<p>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.</p>
+
+<p>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
+<span class="pagenum" id="Page_240">[240]</span>
+people who die in their beds. Nevertheless the rope
+remains as the great deterrent. The rope it is that
+is anticipated with terror.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p><span class="pagenum" id="Page_241">[241]</span></p>
+
+<p>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.</p>
+
+<p>It is somewhat amazing to me that considerations
+such as these should weigh for a moment in any
+just appreciation of Crippen’s character.</p>
+
+<p>They seem to me absolutely irrelevant.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>It is quite clear that the deterrent effect was <i>nil</i>,
+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.</p>
+
+<p><span class="pagenum" id="Page_242">[242]</span></p>
+
+<p>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.</p>
+
+<p>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.</p>
+
+<p>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?</p>
+
+<p class='center'>
+  I am, Sir, your obedient servant,</p>
+<p class='right pr1'>
+  <span class="smcap">A. Chichele Plowden</span>.</p>
+  <p>
+  Marylebone Police Court.
+</p>
+</blockquote>
+
+<hr class="tb">
+
+<p>“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.”
+(<i>Daily Newspaper.</i>)</p>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum" id="Page_243">[243]</span></p>
+
+
+  <h2 class="nobreak" id="APPENDIX_E">
+    APPENDIX E
+    </h2>
+<p class='chap-title'>    AN ENGLISH LEGITIMATION BILL
+  </p>
+</div>
+
+
+<p>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:—</p>
+
+<blockquote>
+<h3><i>A Bill to Amend the Law of Husband and Wife</i></h3>
+
+<p class='center'><span class="allsmcap">A.D.</span> 1910</p>
+
+<p class='mth'><span class="smcap">Whereas</span> it is expedient to amend the law of husband
+and wife:</p>
+
+<p>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:—</p>
+
+
+<h4 id="Power_of_wife_to_petition_for_divorce">
+  <i>Power of wife to petition for divorce</i>
+</h4>
+
+<p><b>1.</b> 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.</p>
+
+<p>For the purposes of this section the expression
+“Court” shall mean the Court for Divorce and
+Matrimonial Causes.</p>
+
+
+<h4 id="Guardianship_of_children">
+  <i>Guardianship of children</i>
+</h4>
+
+<p><b>2.</b> 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.</p>
+
+<p><span class="pagenum" id="Page_244">[244]</span></p>
+
+<p>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.</p>
+
+
+<h4 id="Children_to_be_legitimised_by_marriage">
+  <i>Children to be legitimised by marriage</i>
+</h4>
+
+<p><b>3.</b> Marriage before and after <i>the passing of this
+Act</i> shall operate to legitimise any children previously
+born to the parties to such marriage.</p>
+
+
+<h4 id="Short_Title">
+  <i>Short Title</i>
+</h4>
+
+<p><b>4.</b> This Act may be cited as the Marriage Law
+Amendment Act, 1910.</p>
+</blockquote>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+  <h2 class="nobreak" id="APPENDIX_F">
+    APPENDIX F
+    </h2>
+
+<p class='chap-title'>    <span class="smcap">The Criminal Appeal Act, 1907</span>
+    <br>
+    <span class="smcap">Court of Criminal Appeal</span>
+  </p>
+</div>
+
+<blockquote>
+<p><b>1.</b> (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.</p>
+
+<p>(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
+<span class="pagenum" id="Page_245">[245]</span>
+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.</p>
+
+<p>If the Lord Chief Justice so directs, the court may
+sit in two or more divisions.</p>
+
+<p>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.</p>
+
+<p>(3) The Lord Chief Justice, if present, and in his
+absence the senior member of the court, shall be
+president of the court.</p>
+
+<p>(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.</p>
+
+<p>(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.</p>
+
+<p>&#x2060;<a id="FNanchor_39_39" href="#Footnote_39_39" class="fnanchor">[39]</a>(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
+<span class="pagenum" id="Page_246">[246]</span>
+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.</p>
+
+<p>(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.</p>
+
+<p>(8) Rules of court shall provide for securing
+sittings of the Court of Criminal Appeal, if necessary,
+during vacation.</p>
+
+<p>(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.</p>
+
+<p><b>2.</b> 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.</p>
+
+<p>The senior Master of the Supreme Court shall be
+the first Registrar.</p>
+
+<h3><span class="smcap">Right of Appeal and Determination of Appeals.</span></h3>
+
+<p><b>3.</b> A person convicted on indictment may appeal
+under this Act to the Court of Criminal Appeal—</p>
+
+<p><span class="pagenum" id="Page_247">[247]</span></p>
+
+<p class='alpha'>(<i>a</i>) against a conviction on any ground of appeal
+which involves a question of law alone,
+and</p>
+
+<p class='alpha'>(<i>b</i>) 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</p>
+
+<p class='alpha'>(<i>c</i>) with the leave of the Court of Criminal Appeal
+against the sentence passed on his conviction
+unless the sentence is one fixed by law.</p>
+
+<p><b>4.</b> (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.</p>
+
+<p>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.</p>
+
+<p>(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.</p>
+
+<p>(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
+<span class="pagenum" id="Page_248">[248]</span>
+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.</p>
+
+<p><b>5.</b> (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.</p>
+
+<p>(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.</p>
+
+<p>(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
+<span class="pagenum" id="Page_249">[249]</span>
+substitution for the sentence passed at the trial as
+may be warranted in law.</p>
+
+<p>(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.</p>
+
+<p><b>6.</b> 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—</p>
+
+<p class='alpha'>(<i>a</i>) in any case until the expiration of ten days
+after the date of conviction, and</p>
+
+<p class='alpha'>(<i>b</i>) 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;</p>
+
+<p>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
+<span class="pagenum" id="Page_250">[250]</span>
+property, pending the suspension of the operation
+of any such order of the said provisions.</p>
+
+<p>(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.</p>
+</blockquote>
+
+<h3 id="Procedure">
+  <span class="smcap">Procedure</span>
+</h3>
+
+<blockquote>
+<p><b>7.</b> (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.</p>
+
+<p>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.</p>
+
+<p>(2) In the case of a conviction involving sentence
+of death or corporal punishment—</p>
+
+<p class='alpha'>(<i>a</i>)  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</p>
+
+<p class='alpha'>(<i>b</i>)  if notice is so given, the appeal or application
+shall be heard and determined with as much
+expedition as practicable, and the sentence
+<span class="pagenum" id="Page_251">[251]</span>
+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.</p>
+
+<p><b>8.</b> 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.</p>
+
+<p><b>9.</b> For the purposes of this Act, the Court of
+Criminal Appeal may, if they think it necessary or
+expedient in the interest of justice,—</p>
+
+<p class='alpha'>(<i>a</i>)  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</p>
+
+<p class='alpha'>(<i>b</i>)  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</p>
+
+<p class='alpha'>(<i>c</i>)  if they think fit receive the evidence, if tendered,
+of any witness (including the appellant)
+<span class="pagenum" id="Page_252">[252]</span>
+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</p>
+
+<p class='alpha'>(<i>d</i>)  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</p>
+
+<p class='alpha'>(<i>e</i>)  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;</p>
+
+<p>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.</p>
+
+<p><b>10.</b> 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
+<span class="pagenum" id="Page_253">[253]</span>
+legal aid, and that he has not sufficient means to
+enable him to obtain that aid.</p>
+
+<p><b>11.</b> (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.</p>
+
+<p>(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.</p>
+
+<p><b>12.</b> 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.</p>
+
+<p><b>13.</b> (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.</p>
+
+<p>(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
+<span class="pagenum" id="Page_254">[254]</span>
+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.</p>
+
+<p><b>14.</b> (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.</p>
+
+<p>(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.</p>
+
+<p>(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,
+<span class="pagenum" id="Page_255">[255]</span>
+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.</p>
+
+<p>(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.</p>
+
+<p>(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.</p>
+
+<p><b>15.</b> (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.</p>
+
+<p>(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
+<span class="pagenum" id="Page_256">[256]</span>
+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.</p>
+
+<p>(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.</p>
+
+<p>(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.</p>
+
+<p>(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.</p>
+
+<p><b>16.</b> (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
+<span class="pagenum" id="Page_257">[257]</span>
+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.</p>
+
+<p>(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.</p>
+
+<p>(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.</p>
+
+<p><b>17.</b> 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.</p>
+
+<p><span class="pagenum" id="Page_258">[258]</span></p>
+
+<p><b>18.</b> (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.</p>
+
+<p>(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.</p>
+
+<p>(3) Every rule under this Act shall be laid before
+<span class="pagenum" id="Page_259">[259]</span>
+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.</p>
+</blockquote>
+
+<h3 id="Supplemental">
+  <span class="smcap">Supplemental</span>
+</h3>
+
+<blockquote>
+<p><b>19.</b> 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—</p>
+
+<p class='alpha'>(<i>a</i>)  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</p>
+
+<p class='alpha'>(<i>b</i>)  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.</p>
+
+<p><b>20.</b> (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.</p>
+
+<p>(2) This Act shall apply in the case of convictions
+<span class="pagenum" id="Page_260">[260]</span>
+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.</p>
+
+<p>(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.</p>
+
+<p>(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.</p>
+
+<p><b>21.</b> In this Act, unless the context otherwise
+requires—</p>
+
+<blockquote class='full'>
+<p>The expression “appellant” includes a person
+who has been convicted and desires to appeal
+under this Act, and</p>
+
+<p><span class="pagenum" id="Page_261">[261]</span></p>
+
+<p>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.</p>
+</blockquote>
+
+<p><b>22.</b> The Acts specified in the schedule of this Act
+are hereby repealed to the extent mentioned in the
+third column of that schedule.</p>
+
+<p><b>23.</b> (1) This Act may be cited as the Criminal
+Appeal Act, 1907.</p>
+
+<p>(2) This Act shall not extend to Scotland or
+Ireland.</p>
+
+<p>(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.</p>
+</blockquote>
+
+<p>(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.)</p>
+
+<div class='footnotes'>
+<h3 id="FOOTNOTES_11">
+  FOOTNOTE
+</h3>
+
+<div class="footnote"><p><a id="Footnote_39_39" href="#FNanchor_39_39" class="label">[39]</a> It was under this section that the notorious murderer,
+S. Morrison, or Morris Stein, endeavoured to carry his
+appeal to the House of Lords, but the Attorney-General (Sir
+Rufus Isaacs) refused the necessary certificate.</p></div>
+</div>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum" id="Page_262">[262]</span></p>
+
+
+  <h2 class="nobreak" id="APPENDIX_G">
+    APPENDIX G
+    </h2>
+<p class='chap-title'>    THE CORONATION OATH OF KING GEORGE V
+  </p>
+</div>
+
+
+<p>The Coronation Oath of King George V. is
+identical with that of Queen Victoria save in
+respect of reference to the Church of Ireland:—</p>
+
+<h3><span class="smcap">The Oath</span></h3>
+
+<blockquote>
+<p class='hang-g'>¶ 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,</p>
+
+<p class='pg'>Sir, is your Majesty willing to take the Oath?</p>
+
+<p class='hang-g'>¶ And the King answering,</p>
+
+<p class='pg'>I am willing,</p>
+
+<p class='hang-g'>¶ The Archbishop shall minister these questions;
+and the King, having a book in his hands, shall
+answer each question severally as follows:</p>
+
+<p><i>Archbishop.</i> Will you solemnly promise and swear
+to govern the people of this United Kingdom of
+<i>Great Britain</i> and <i>Ireland</i>, and the Dominions thereto
+belonging, according to the Statutes in Parliament
+agreed on, and the respective Laws and Customs of
+the same?</p>
+
+<p><i>King.</i> I solemnly promise so to do.</p>
+
+<p><i>Archbishop.</i> Will you to your power cause Law
+and Justice, in Mercy, to be executed in all your
+judgments?</p>
+
+<p><i>King.</i> I will.</p>
+
+<p><i>Archbishop.</i> Will you to the utmost of your power
+maintain the Laws of God, the true profession of the
+<span class="pagenum" id="Page_263">[263]</span>
+Gospel, and the Prostestant Reformed Religion
+established by law? And will you maintain and
+preserve inviolably the settlement of the Church of
+<i>England</i>, and the doctrine, worship, discipline, and
+government thereof, as by law established in <i>England</i>?
+And will you preserve unto the Bishops and Clergy of
+<i>England</i>, 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?</p>
+
+<p><i>King.</i> All this I promise to do.</p>
+
+<div class="sidenote">The Bible to
+be brought;</div>
+
+<p class='hang-g'>¶ 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:</p>
+
+<p>The things which I have here before promised, I
+will perform, and keep.</p>
+
+<p class='right pr1'>
+  So help me God.
+</p>
+
+<div class="sidenote">And a silver
+Standish.</div>
+
+<p class='hang-g'>¶ Then the King shall kiss the Book,
+and sign the Oath.</p>
+</blockquote>
+
+<hr class="tb">
+
+<p>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
+<span class="pagenum" id="Page_264">[264]</span>
+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.</p>
+
+<hr class="tb">
+
+<p>The accompanying paragraph from the <i>Coronation
+Service</i>, by the Rev. Joseph H. Pemberton,
+contains some information:</p>
+
+<blockquote>
+<p>“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.”</p>
+</blockquote>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+
+<p><span class="pagenum" id="Page_265">[265]</span></p>
+
+
+  <h2 class="nobreak" id="APPENDIX_H">
+    APPENDIX H
+    </h2>
+<p class='chap-title'>    THE POOR PRISONERS’ DEFENCE ACT, THE
+    PERJURY BILL, AND THE CRIMINAL
+    EVIDENCE ACT
+  </p>
+</div>
+
+
+<h3>I. <span class="smcap">The Poor Prisoners’ Defence Act</span></h3>
+
+<p>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:—</p>
+
+
+<blockquote>
+<h4><span class="smcap">An Act to make Provision for the Defence of
+Poor Prisoners.</span></h4>
+
+<p class='right pr1'>
+  (14th August, 1903)
+</p>
+
+<p class='no-indent'>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:—</p>
+
+<p><b>1.</b> (1) Where it appears, having regard to the
+nature of the defence set up by any poor prisoner,
+<span class="pagenum" id="Page_266">[266]</span>
+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—</p>
+
+<p class='alpha'>(<i>a</i>)  the committing justices, upon the committal
+of the prisoner for trial, or</p>
+
+<p class='alpha'>(<i>b</i>)  the judge of a court of assize or chairman of a
+court of quarter sessions, at any time after
+reading the depositions,</p>
+
+<p>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.</p>
+
+<p>(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.</p>
+
+<p><b>2.</b> 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.</p>
+
+<p><b>3.</b> In this Act—</p>
+
+<blockquote class='full'>
+<p>“Prisoner” includes a person committed for
+trial on bail.</p>
+
+<p>“Committing justices” includes a magistrate
+of the police courts of the metropolis and a
+stipendiary magistrate.</p>
+
+<p>“Chairman” includes recorder or deputy recorder
+or deputy chairman.</p>
+</blockquote>
+
+<p><span class="pagenum" id="Page_267">[267]</span></p>
+
+<p><b>4.</b> This Act shall not extend to Scotland or Ireland.</p>
+
+<p><b>5.</b> 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.</p>
+</blockquote>
+
+<p>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,
+<span class="pagenum" id="Page_268">[268]</span>
+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.</p>
+
+
+<h3 id="II_The_Perjury_Bill">
+  II. <span class="smcap">The Perjury Bill</span>
+</h3>
+
+<p>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:—</p>
+
+<p><span class="pagenum" id="Page_269">[269]</span></p>
+
+<blockquote>
+<p><b>1.</b>—(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.</p>
+
+<p>(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.</p>
+
+<p>(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.</p>
+
+<p>(4) A statement made by a person lawfully sworn
+in England or Ireland for the purposes of a judicial
+proceeding—</p>
+
+<p class='alpha'>(<i>a</i>) in another part of His Majesty’s dominions, or</p>
+
+<p class='alpha'>(<i>b</i>) in a British tribunal lawfully constituted in
+any place by sea or land outside His Majesty’s
+dominions, or</p>
+
+<p class='alpha'>(<i>c</i>) in a tribunal of any foreign state,</p>
+
+<p class='no-indent'>shall for the purpose of this section be treated as a
+statement made in a judicial proceeding in England
+or Ireland.</p>
+
+<p>(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—</p>
+
+<p class='alpha'>(<i>a</i>) in any other part of His Majesty’s dominions, or</p>
+
+<p><span class="pagenum" id="Page_270">[270]</span></p>
+
+<p class='alpha'>(<i>b</i>) before a British tribunal or a British officer in
+a foreign country, or within the jurisdiction
+of the Admiralty of England,</p>
+
+<p class='no-indent'>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.</p>
+
+<p>(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.</p>
+
+<p><b>2.</b> If any person—</p>
+
+<p class='alpha'>(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</p>
+
+<p class='alpha'>(2) wilfully uses any false affidavit for the purposes
+of the Bill of Sale Act, 1878, as amended
+by any subsequent enactment,</p>
+
+<p class='no-indent'>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.</p>
+
+<p><b>3.</b> (1) If any person—</p>
+
+<p class='alpha'>(<i>a</i>) 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
+<span class="pagenum" id="Page_271">[271]</span>
+for the time being in force relating to
+marriage, or</p>
+
+<p class='alpha'>(<i>b</i>) 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.</p>
+
+<p class='alpha'>(<i>c</i>) 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,</p>
+
+<p class='no-indent'>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.</p>
+
+<p>(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 &ensp;&ensp; months from the solemnization
+of the marriage to which the declaration refers.</p>
+
+<p><b>4.</b> (1) If any person—</p>
+
+<p class='alpha'>(<i>a</i>) 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</p>
+
+<p class='alpha'>(<i>b</i>) 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
+<span class="pagenum" id="Page_272">[272]</span>
+declaration to be false, uses the same as
+true or gives or sends the same as true to
+any person, or</p>
+
+<p class='alpha'>(<i>c</i>) 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</p>
+
+<p class='alpha'>(<i>d</i>) makes any false statement with intent to have
+the same inserted in any register of births
+or deaths:</p>
+
+<p class='no-indent'>shall be guilty of a misdemeanour and shall be
+liable—</p>
+
+<p class='alpha'>(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</p>
+
+<p class='alpha'>(ii) on summary conviction thereof to a penalty
+not exceeding ten pounds:</p>
+
+<p>(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.</p>
+
+<p><b>5.</b> If any person knowingly and wilfully makes
+(otherwise than on oath) a statement false in a
+material particular, and the statement is made—</p>
+
+<p class='alpha'>(<i>a</i>) in a statutory declaration, or</p>
+
+<p class='alpha'>(<i>b</i>) 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</p>
+
+<p class='alpha'>(<i>c</i>) in any oral declaration or oral answer which he
+<span class="pagenum" id="Page_273">[273]</span>
+is required to make by (under or in pursuance
+of) any public general Act of Parliament for
+the time being in force,</p>
+
+<p class='no-indent'>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.</p>
+
+<p><b>6.</b> If any person—</p>
+
+<p class='alpha'>(<i>a</i>) 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</p>
+
+<p class='alpha'>(<i>b</i>) procures or attempts to procure a certificate
+of the registration of any person on any
+such register or roll as aforesaid,</p>
+
+<p class='no-indent'>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.</p>
+
+<p><b>7.</b> (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.</p>
+
+<p>(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.</p>
+
+<p><span class="pagenum" id="Page_274">[274]</span></p>
+
+<p><b>8.</b> 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.</p>
+
+<p><b>9.</b> (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.</p>
+
+<p>(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.</p>
+
+<p><b>10.</b> 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
+<span class="pagenum" id="Page_275">[275]</span>
+enactment for the time being in force is declared
+to be perjury or to be punishable as perjury, or as
+subornation of perjury.</p>
+
+<p><b>11.</b> 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.</p>
+
+<p><b>12.</b> (1) In an indictment—</p>
+
+<p class='alpha'>(<i>a</i>) for making any false statement or false representation
+punishable under this Act, or</p>
+
+<p class='alpha'>(<i>b</i>) 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,</p>
+
+<p class='no-indent'>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.</p>
+
+<p>(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,
+<span class="pagenum" id="Page_276">[276]</span>
+or with attempting to suborn or procure any other
+person, to commit any such offence, it is sufficient—</p>
+
+<p class='alpha'>(<i>a</i>) 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</p>
+
+<p class='alpha'>(<i>b</i>) 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.</p>
+
+<p><b>13.</b> 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.</p>
+
+<p><b>14.</b> On a prosecution</p>
+
+<p class='alpha'>(<i>a</i>) for perjury alleged to have been committed on
+the trial of an indictment for felony or
+misdemeanour, or</p>
+
+<p class='alpha'>(<i>b</i>) for procuring or suborning the commission of
+perjury on any such trial,</p>
+
+<p class='no-indent'>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.</p>
+
+<p><span class="pagenum" id="Page_277">[277]</span></p>
+
+<p><b>15.</b> (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.</p>
+
+<p>(2) In this Act—</p>
+
+<blockquote class='full'>
+<p>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</p>
+
+<p>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</p>
+
+<p>The expression “indictment” includes “criminal
+information.”</p>
+</blockquote>
+
+<p><b>16.</b> (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.</p>
+
+<p>(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.</p>
+
+<p>(3) Where the making of a false statement is by
+any other Act, whether passed before or after the
+<span class="pagenum" id="Page_278">[278]</span>
+commencement of this Act, made punishable on
+summary conviction proceedings may be taken
+either under such other Act or under this Act:</p>
+
+<p>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.</p>
+
+<p><b>17.</b> 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.</p>
+
+<p><b>18.</b> This Act shall not extend to Scotland or
+Ireland.</p>
+
+<p><b>19.</b> 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.</p>
+</blockquote>
+
+<p>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.”</p>
+
+<p>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
+<span class="pagenum" id="Page_279">[279]</span><i>suppressio veri</i>, as opposed to <i>expressio falsi</i>,
+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.</p>
+
+<p>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 <i>is</i>
+actually married in law, or when and where
+he <i>was</i> 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.</p>
+
+<p>In sub-section (2), clause 5, of the Perjury
+Bill, there is the line, “after the expiration
+<span class="pagenum" id="Page_280">[280]</span><i>of months</i> 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.</p>
+
+
+<h3 id="III_The_Criminal_Evidence_Act">
+  III. <span class="smcap">The Criminal Evidence Act</span>
+</h3>
+
+<p>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
+<span class="pagenum" id="Page_281">[281]</span>
+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 <i>sang
+froid</i>, 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.</p>
+
+<p>Owing to the shortness of the Criminal
+Evidence Act, and owing also to its clearness
+<span class="pagenum" id="Page_282">[282]</span>
+of meaning, it may here be inserted intact,
+without misgiving. It is made up of only
+seven brief sections, the first of which begins,</p>
+
+<blockquote>
+<p><b>1.</b> 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:—</p>
+
+<p class='alpha'>(<i>a</i>) a person so charged shall not be called as a
+witness in pursuance of this Act except
+upon his own application.</p>
+
+<p class='alpha'>(<i>b</i>) 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.</p>
+
+<p class='alpha'>(<i>c</i>) 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.</p>
+
+<p class='alpha'>(<i>d</i>) 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.</p>
+
+<p class='alpha'>(<i>e</i>) 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.</p>
+
+<p class='alpha'>(<i>f</i>) A person charged and called as a witness in
+pursuance of this Act shall not be asked,
+<span class="pagenum" id="Page_283">[283]</span>
+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—</p>
+
+<blockquote class='full'>
+<p class='beta'>(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</p>
+
+<p class='beta'>(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</p>
+
+<p class='beta'>(iii) he has given evidence against any other
+person charged with the same offence.</p>
+</blockquote>
+
+<p class='alpha'>(<i>g</i>) 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.</p>
+
+<p class='alpha'>(<i>h</i>) 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.</p>
+
+<p><b>2.</b> 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.</p>
+
+<p><b>3.</b> In cases where the right of reply depends upon
+the question whether evidence has been called
+<span class="pagenum" id="Page_284">[284]</span>
+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.</p>
+
+<p><b>4.</b> (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.</p>
+
+<p>(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.</p>
+
+<p><b>5.</b> 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.</p>
+
+<p><b>6.</b> (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.</p>
+
+<p>(2) But this Act shall not apply to proceedings
+in courts martial unless so applied—</p>
+
+<p class='alpha'>(<i>a</i>) as to courts martial under the Naval Discipline
+Act, by general orders made in pursuance
+of section sixty-five of that Act, and</p>
+
+<p class='alpha'>(<i>b</i>) as to courts martial under the Army Act by
+rules made in pursuance of section seventy
+of that Act.</p>
+
+<p><b>7.</b> (1) This Act shall not extend to Ireland.</p>
+
+<p>(2) This Act shall come into operation on the
+expiration of two months from the passing thereof.</p>
+
+<p>(3) This Act may be cited as the Criminal Evidence
+Act, 1898.</p>
+</blockquote>
+
+<p><span class="pagenum" id="Page_285">[285]</span></p>
+
+<p>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>i.e.</i>, 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.</p>
+
+<p>Since the trial, at the Central Criminal
+<span class="pagenum" id="Page_286">[286]</span>
+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
+(<i>b</i>), 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.</p>
+
+<p>“Defending counsel may again, as in
+Rex v. Morrison,” says a legal writer in
+<i>The Daily Mail</i>, “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.”</p>
+
+<p>The same matter has brought some remarks
+from the law correspondent of <i>The Pall Mall
+Gazette</i>, “If there is to be legislation on the
+subject, one suggestion may be hazarded.
+It is that, whatever other amendments in
+<span class="pagenum" id="Page_287">[287]</span>
+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.”</p>
+
+<p>Even <i>The Law Times</i> 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.”</p>
+
+
+<hr class="chap x-ebookmaker-drop">
+<div class="chapter">
+<div class='transnote'>
+  <h2 class="nobreak" id="Transcribers_Notes">
+    Transcriber’s Notes
+  </h2>
+
+
+<ul>
+<li>Obvious typographic errors silently corrected.</li>
+
+<li>Variations in hyphenation and spelling left as in the original.</li>
+
+<li>Footnotes renumbered consecutively and moved to the end of their
+respective chapters. There are two intentionally duplicated footnote
+references that use the same footnote source.</li>
+
+<li>New original cover art included with this eBook
+ is granted to the public domain.</li>
+</ul>
+</div></div>
+<div style='text-align:center'>*** END OF THE PROJECT GUTENBERG EBOOK 77236 ***</div>
+</body>
+</html>
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+Project Gutenberg (https://www.gutenberg.org) public repository for eBook #77236
+(https://www.gutenberg.org/ebooks/77236)