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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 ***