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]