_régime_, as will be seen, it literally flourished--but it is not
wanted in this country at this time and by a fictitious process, too,
which is regarded with disfavour by many of the judges empowered to
employ it.
FOOTNOTES
[20] Lord Mackenzie.
[21] _Oswald on Contempt, Committal and Attachment._
CHAPTER VI
THE NEED FOR THE RIGHT OF PROPERTY IN SURNAMES
A very anomalous side of the law is to be found in connection with
the use of surnames: their variation, their complete change, etc. John
Smith may freely call himself John Montmorency or John Plantagenet,
or any other name in keeping with his fancy. He may even go a step
further, and call himself Baron Montmorency or Viscount, or Count, or
Marquis or Duke, or whatever else he likes. So long as the name and
title do not cause persons to give him credit which they would not
give him as John Smith, he is comparatively immune from the meshes of
the law. The whole question therefore evolves itself into a simple
issue--_i.e._, is the assumption of the title or surname with a view to
imposing on people, and does it in fact so impose upon them that they
are led to part with goods or money on the strength of the success of
the imposition?[22]
Many Jews and other aliens on becoming established in this country
drop their patronymics, which may end with a “stein” a “berg” or a
“ski” and call themselves instead, “Gordon,” or “Howard” or something
else equally reassuring. That such a loose state of affairs should be
permitted is an indirect incitement to fraud. Admittedly, “Cohen” or
“Solomon” is not, perhaps, an incentive, _primâ facie_, to business
relations, whereas “Harris” or “Langton” may be.
It is utterly iniquitous the way the family names of British peers
have been seized upon by the sons of Israel. One finds some of the
greatest names in the history of the country applied to the offspring
of Whitechapel. Some legal check is needed to prevent this, even where
no direct intention exists to commit a punishable fraud by means of the
fiction. It is not suggested that those Jews who have reached power in
England use their adopted appellations to carry on swindles. But it is
improper that they should prosper under the great name of some English
or Scottish ducal house, when they have never perhaps even so much
as lent money to its members in the junior line! Several peculiarly
flagrant instances of the kind suggest themselves to the mind. Great
dignity has sometimes been bestowed on the scions of a Hebrew house
whose adopted name has clashed unpleasantly with the noble name of
an historic family. Why a name like “Sowinski” should be replaced by
“Cavendish” one fails to see, particularly as a name carries with it
definable or indefinable, conscious or unconscious, associations, which
weigh.[23]
The offspring of the original “Sowinski” becomes “Charles,” or
“Edward,” or “George”--“George Cavendish.” Obviously, such a person
has reached a financial status far above interest in trivial fraud,
though his name is a constant fraud of sorts on some one, particularly
if he remains only a name--_invisible_! To descend to the lower
branches of struggle for gain by imposture, we find “Claude Churchill”
lending money, practically without interest, “Edwin Graham” giving
bank notes away on mere notes of hand, and “Hubert Douglas” most eager
to cash post-dated cheques, literally for nothing! It is incredible!
How a “Lazarus” can become a “Scott,” an “Aarons” an “Ogilvie,” and
a “Niemann” or a “Katz” a “Murray,” is far beyond reasonable process
of deduction! It is a gross anomaly of the law that it should be
tolerated. A High Court judge recently drew a limited parallel--the
assumption of noble names by money-lenders. “What’s in a name?” may
be asked by the illiterate or semi-illiterate man, and yet he is
as promptly influenced by it as persons to whom a name admittedly
suggests something tangible. In the case of “John Smith,” we have
a name which is not distinctive, which, indeed, must be confusing
and burdensome to its possessor. He may have a much larger banking
account than an individual of distinguished name and lineage, and,
if so, he is perfectly justified in using it to change his name to
“Boggs,” or “Hoggs,” or “Noggs” or whatever other name exists in his
maternal line. However lowly his origin, he should be compelled to
choose a name associated with his parentage. He should not be allowed
the option of assuming a high-sounding name to which he can lay no
claim. His choice should be limited to the names of his ascendants.
In this way, there would be some semblance of actual justification
for discarding a commonplace patronymic. The candidate for change of
name could effect his purpose by deed poll, an easy task involving
no proof of pedigree or gentle birth. Affidavit should, however, be
made that the name chosen, on the plan here suggested, was the name
of such and such an ascendant of the person making the change. This
would be an effort on the part of the law to reduce the system to order
and method. In the case of Russians, Poles, aliens of suggestive and
hideous surname, whatever change of name allowed to them, such change
should conform with their foreign origin. Provision for the infliction
of penalties for disobedience in this connection would help matters in
the right direction. The whole question may seem trivial, but from the
ramifications which spread out from the use of an _alias_ or fictitious
surname, much deception, or fraud, or improper profit almost amounting
to fraud, frequently, if not generally, results. This is stating the
case in a very mild way.
Establishing the identity of an alien in this country should also
be made easier by compelling every such person to produce documentary
evidence of his (or her) identity on landing, and to make such person
subject to interrogation or examination on the point at any subsequent
time. This is a side-issue; still, it is linked to the main question
here raised, namely, the chaotic laxity permitted, or, at any rate,
not prevented, with regard to the change of a person’s name. The
method of the deed poll, as at present applied, though preferable
to the impromptu nomenclature adopted by the criminal classes, is
certainly not above reproach. It allows too much license in the
choice of a name. Change of surname should, as already pointed out,
be restricted to cases where the claim to the new name is at least
colourable, _i.e._, permissible only where the name desired is the name
of an ascendant.[24] If some of these suggestions were carried out,
there would be no more mad hunts for practically anonymous criminals
like “Peter the Painter” and “Fritz,” the suspected murderers in the
notorious Hounsditch fiasco. The wonder is that no one has apparently
yet seized upon the feeble system or absence of system in checking the
rightful names of the inhabitants of these islands. Legislation for
the punishment of persons making an improper use of surnames would be
distinctly useful. There would be fewer Polish “Harrises” and Russian
“Montagues” or, indeed, “Montagus” (less the “e,” for in some cases
this further audacity has been exhibited), in England than there are
to-day. Even the descendants of these august impostors would tremble in
their boots! “Solomon” or “Aaronstein” or “Samuel” would also become
their appearance better in many cases! These remarks, though they
obviously refer to Jews, are not intended to offend respectable Jews
who courageously adhere to the ugly names of their ancestors. The Jew
who says he is a Jew and passes under a name properly associated with
the Jewish race calls for no rebuke, nor, indeed, for anything, very
often, except genuine admiration. It is the impostor, great and little,
criminal or merely falsely ambitious, who attracts hostile attention,
with some substantial justification, be it confessed.
With regard to the small fry of the improper hyphen, there is nothing
to be said. Thousands of persons use hyphens who, if they had any sense
of proportion or self-respect, would hastily discard such a laughably
inconsistent sham. Unless a hyphen expresses the legal joining of
two surnames, thus bringing together the pedigrees of two houses, it
conveys nothing but _bourgeois_ affectation and impudence. It is a
feeble fraud at best, scarcely worth condemning. Different causes bring
about the legal use of the hyphen. Sometimes, a rich father-in-law
without heirs male directs by his will that his daughter’s husband
shall, by Royal License, assume the additional surname, whatever it may
be, which becomes extinct at his (the father-in-law’s) death, before
or after his (the son-in-law’s) own name. In this way the hyphen comes
into being, and the name which would have perished is duly kept alive.
At other times, the additional surname of an ancestor, where that
ancestor bore a distinguished name, in the maternal line, is revived
by process of law on the voluntary initiative of the person desirous
of possessing the name. Thus, a person representing in his blood an
historic family through, for example, his father’s mother, may by Royal
License assume his grandmother’s maiden name, the more justifiably
if she was in the nature of an heiress or co-heiress of the house.
The name, of course, may be joined to the existing surname, before or
after, with a hyphen, or it may be taken alone in substitution for the
existing surname.
Reference has been made to the freedom with which a man may call
himself by any name, without legal formality, and to the equal freedom
with which an alien may discard his own name and by deed poll assume
the honoured name of a great English house. (Alas, the Royal Licence
has been used in at least one glaring instance, too!) It has also been
made obvious that such practices should be checked by definite legal
means.[25]
The countries where conscription is customary are well protected
against change of name abuses. Conscription would solve the difficulty
here; but there are ways and means of putting down a most iniquitous
practice, a criminal practice in its intent, more often than not, by
ordinary legislation. Actors and actresses could be exempted because
they do not appear to offend in the sense that the impostors condemned
in the foregoing remarks offend.
It so happens that a further judicial allusion, as to the wrongful
assumption of great names, has been made, and duly reported in the
press. “As usual on Saturday,” says the report, “a number of short
cause actions, generally of a money-lending character, came on for
hearing, in Mr. Justice Darling’s Court in the King’s Bench Division
yesterday. One of them involved considerable argument upon a point of
law with reference to the passing, by a bank, of a cheque, which, it
was alleged, had been altered by the addition of the word, ‘Limited,’
to the plaintiff company.
“Counsel: ‘But at the time the cheque was drawn the plaintiffs were
not a limited company, and the title therefore was not their real
title.’
“‘Oh,’ commented Mr. Justice Darling, ‘such a thing does not surprise
me. I sit here on Saturday and hear all sorts of persons called
Fortescue, Plantagenet, Egerton, and so on, but those are never their
real names. You must not think that on Saturdays I expect people to
give their real names here, because I don’t!’
“His lordship was obviously referring to certain money-lenders whose
registered trade name, as distinct from the name of their parents, has
already given rise to judicial comment.
“The decision eventually went in favour of the defendants, who had paid
the cheque to one of the plaintiffs.
“There was considerable disturbance in the passage of the court when
another case was called, some litigants leaving the court, and others
hastening to the vacant seats.
“A witness named Fitz-Clarence was called in another case.
“‘Quite a Saturday name,’ observed counsel.
“‘All the Burkes and Debretts come here on Saturday,’ replied his
lordship, amid laughter.”[26]
Casual mention has been made of actors. Of those well-known, Henry
Irving was born Brodribb; Herbert Tree, Beerbohm; while George
Alexander’s surname was Samson. In no one of these instances was a
great family name improperly assumed, and it stands to the credit
of these theatrical leaders that such is in fact the case. There
are several persons on the English stage who are perfectly entitled
to describe themselves by well-known names. Lord Rosslyn, Lord
Yarmouth, Lord Dangan, Lady Constance Richardson, and the Hon. Helen
Douglas-Scott-Montagu, are among the number. Mr. Adolphus Yane-Tempest,
also distinguished in the theatrical world, is a Londonderry, while Mr.
Cosmo Gordon-Lennox, one of the Richmonds, is another actor entitled to
a distinguished name.
Constant use of a name is said to impart some element of right to
the name so used, but unless the deed poll is brought into operation,
one might reasonably suppose the name in question to be subject to
attack as an _alias_. Writers are given to the assumption of the
_nom de plume_. Beaumarchais, the hardy author of _Le Barbier de
Seville_ and _Le Mariage de Figaro_, was originally Caron by name,
but there is reason to believe that he became “De Beaumarchais”
by legal process. Some people even suggest that “Shakespeare” was
an _alias_ for Bacon! Many instances have occurred where writers,
distinguished and otherwise, have adorned their work with fictitious
names. Modern examples pass through one’s mind in dozens, but the
persons forming them have not gone to the extremity of using their
_noms de guerre_ in private life. Sometimes two people, prominent
in different spheres, bear the same combination of names, where the
names are not particularly commonplace. There is a novelist, of some
reputation in America, who like the present Home Secretary, is known as
Winston Churchill. As the Home Secretary’s “Winston” is derived from an
ancestress who married into the house of Marlborough, it is difficult,
without guidance, to see how the American novelist derived _his_
“Winston,” for “Winston” is said to be his name.
Juggling with names should be made a punishable deception. There are
exceptional circumstances, already roughly outlined, which warrant the
legitimate assumption of a name, justly celebrated, perhaps, where
it is represented in the blood.[27] Cases of the kind do not come at
all within the intention of these remarks, which are directed against
foolish or fraudulent persons who have no colourable right to the
names they assume. These offenders should be properly labelled by the
law, and not by the vagaries of aspiring imaginations or criminal
subterfuges.
FOOTNOTES
[22] “Application was made at Clerkenwell, to-day, for process against
a man calling himself ‘Viscount Mackenzie,’ for deserting his wife
and for obtaining credit by false pretences from his landlady, Mdme.
Gabrielle Suffolk, of Ampthill Square, St. Pancras.
“It was stated that the man had represented himself to be ‘Viscount
Mackenzie, of Mackenzie, in Ross-shire, Duke of St. Omars (a
surgeon-general in H.M. Army).’
“Mr. Bros heard the wife first.
“‘Viscountess Mackenzie,’ as the landlady called her, said she was
married to the man on January 7th, and he left her ‘four weeks to-day.’
“_Mr. Bros_: ‘Do you know his address?’--‘No, sir.’
“_Mr. Bros_: ‘Then I’m afraid I cannot help you.’
“The magistrate then called the landlady.
“She said she knew the man as ‘Viscount Mackenzie,’ and the wife as
‘the Duchess.’
“_Mr. Bros_: ‘You didn’t believe that, did you?’
“_The landlady_: ‘He said he was a surgeon-general in H.M. Army, and
would get his pension at the end of the month.’
“It was stated that the ‘Viscount’ had left his will behind him, and
the magistrate remarked that that did not help him.
“This will was produced in court the previous afternoon, when the wife
summoned the landlady for detaining her property, and stated that her
noble husband had induced her to part with all her money. The will gave
and bequeathed to ‘the Viscountess’ £6,000 a year for life and ‘all the
family plate.’
“On the sworn evidence of the landlady, a warrant was
granted.”--_Evening newspaper._
[23] “Noblemen, and their children, carry about with them, in their
very titles, a sufficient notification of their rank. Nay, their very
names (and this applies also to the children of many untitled houses)
are often, to the English ear, adequate exponents of high birth, or
descent. Sackville, Manners, Fitzroy, Paulet, Cavendish, and scores
of others, tell their own tale.... Such persons, therefore, find
everywhere a due sense of their claims already established, except
among those who are ignorant of the world, by virtue of their own
obscurity.”--De Quincey, _Confessions of an Opium-Eater_.
[24] Or where the change is to be effected by Royal License, when the
assumption of the name and arms might be prevented.
[25] A solicitor on the Rolls cannot change his name except by
the leave of the Master of the Rolls, who requires either a Royal
License or a deed poll enrolled plus advertisements. (A note by Mr.
Cozens-Hardy, the well-known barrister, who is, of course, the son of
the Master of the Rolls, the Right Hon. Sir Herbert Cozens-Hardy.)
[26] Sunday newspaper.
[27] Mr. Samuel Beach Chester is the only child of the eldest
(married) son, the late Captain Paul Townsend Jones, Jones’ Independent
Battery, Pennsylvania Artillery, of the late Rev. Samuel Beach Jones,
D.D., of Bridgeton, New Jersey, a trustee of Princeton University, and
a graduate of Princeton and Yale, who married the eldest child (all
daughters) of the Rev. John Chester, head of the Wethersfield branch of
the Chesters of Blaby in Leicestershire. The Chesters of Wethersfield
stood at the head of affairs in Connecticut in the 17th, 18th, and
(early part of the) 19th centuries. By order of the New York Supreme
Court, 1901, Mr. Chester assumed the maiden name of his grandmother,
Sarah Ralston Chester. Mr. William Chester represents the junior male
line and Mr. Beach Chester the senior female line, genealogically, at
the present time. The Chesters of Wethersfield, Connecticut, are not
related to any other family of the same name established in Connecticut
or elsewhere in the United States.
CHAPTER VII
LITERARY CENSORSHIP
There seems to be some need for the revision of the law applied
to literary productions. The subject is a peculiarly important one
to writers, printers and publishers, and, to a lesser extent, to
the public at large. When a publisher undertakes the publication
of a novel, for example, he involves himself in a liability for a
considerable sum for its production. The unknown writer may, by a
certain contributory process, bear a part of the burden borne by the
publisher. Only the writer with a name of one sort or another, or with
a certain circulation, can reach the stage which confers the advantage
of publication for reward. The publisher has his difficulties to
face in securing the services of a writer of this class, and, when
these difficulties have been overcome, he has the financial burden of
production to confront. This burden is in itself reasonably heavy,
with the result that he has to be most careful to avoid publishing any
matter, which may be condemned by the authorities as “indecent.” There
is something to be said as to what constitutes indecency, of course,
and this very uncertainty makes the publisher’s _métier_ the more
trying. It is more than trying; it is unfair.
The translated works of Marcel Prévost, a writer of genius, a member
of the Acadèmie Française, have been suppressed time and time again.
Théophile Gautier, Émile Zola, Guy de Maupassant, Gustave Flaubert,
and many other writers of the first water, have had the English
translations of their works suppressed. Admittedly, the freedom with
which sexual relations are dealt with by these writers has sometimes
been construed into indecency in this country. Certainly, the
translations, or many of them, are inferior in workmanship, and lend
themselves to condemnation by their very crudity. However this may be,
it is perfectly obvious that the legal method of dealing with indecent
or questionable literature is thoroughly inadequate, uncertain in its
effect, and needful of drastic improvement. That is to say, primarily,
a definite protection and security should be provided for the publisher
against loss arising out of the suppression of his publication. It may
be said, with partial propriety, that the best way for a publisher
to protect himself is not to publish _risqué_ works. But it must be
remembered that a publisher is not necessarily an expert on what
actually constitutes legal indecency, nor are his readers or advisers.
To be able to judge with some exactitude the decency or indecency of
sexual problem novels requires both legal and literary skill It is not
always so, naturally, though a certain number of works of literary
merit demand a high sense of discrimination in deciding their moral
limits. It is not precisely the immorality of a book which settles the
question: it is rather its treatment. There are many gross novels,
written by persons of inferior education. No doubt can exist as to
their indecency. But the publisher, perhaps, who undertakes their
publication, is merely careless in his methods. It is his duty,
indubitably, to take reasonable precaution; having failed to do so,
his position is a bad one. He may be prosecuted, committed for trial,
and imprisoned or fined, along with the printer. He also has to bear
the loss of production, a consideration in itself, as stated. His
“suppressed” novels become unsaleable at once.
A recent case at Bow Street Police Court was in a sense interesting
from the legal standpoint respecting indecent books. A prosecution was
started against the wholesale distributors of certain objectionable
novels, the work of an anonymous writer. The identity of the publisher
was not disclosed on the title pages of the books, nor did the
printer’s imprint appear. The distributors, therefore, stood _in loco
parentis_. They were mulcted in fines and costs to the extent of about
£400. The novels seized were ordered to be destroyed, as a matter of
course.
The technical basis for fines on such a scale was the absence of the
printer’s imprint--a legal necessity. The penalties attaching to an
infringement of the law on this subject make it worth the while of
every person responsible for the production of a book to preclude the
possibility of an oversight. Certainly, it may be assumed that the mind
of the magistrate was (in deciding the case above referred to) largely
influenced by the gross character of the books. Nevertheless, the
printer’s imprint should always appear.
By an anomaly of the law, a writer is not liable for the indecent
contents of his (in the recent case at Bow Street, “her”) books. That
is to say, so long as they do not constitute a libel upon someone. The
brunt of the trouble falls upon the printer and the publisher, more
particularly, in practice, upon the publisher.
One point which must strike the mind of any person interested in the
examination of books for publication is the very proper hostility of
the magistracy towards books, however excellent in literary quality,
which touch upon unnatural offences. In a novel of some merit--“_The
Hazard of the Die_”--a veiled suggestion, very veiled, it seemed,
of an unnatural association, ran through a portion of the book. It
was suppressed by the authorities, though it bore the imprint of a
respectable publisher.
Writers are at present hampered and restricted in the treatment of
ordinary sexual relations by many of the more important subscription
libraries. A writer has to consider his publisher, and the publisher
has to give some thought to his market. What has sometimes been
described as “the library ban” curtails the field of description to a
greater extent than the public authorities.
Whether or not all these bulwarks improve or protect the morals of the
kingdom is a moot question. To the ruthless mind, they seem to savour
of excess. Why any one body of persons, of no particular qualification,
should decide what is good and what is harmful for another superior
order to read is fantastic and even stupid to a degree. This
_quasi_-censorship may be beneficial in theoretically protecting the
young and innocent mind from coming into too early contact with pages
from life, but it is hardly considerate of those maturer readers
who may be anxious to be drawn from their own _ennuis_ by the light
treatment of other people’s. The suppression of all printed matter
relating to sexual difficulties, from divorce reports to novels and
plays, from classics to social memoirs, might tend perhaps to check an
increase of knowledge in the very young, though as long as we are human
beings and not metallic automata it may be presumed with some safety
that sexual relations will scarcely become extinct! Why the adolescent
mind should have to be rescued from a problematic contact with certain
printed matter, when, _per se_, proper upbringing should turn it
against depravity, one almost fails to see.
Of course, questions of morality and immorality have their degrees.
For instance, the most ardent supporters of freedom in connection with
literary works would not be able to give countenance to such gross
indecency as that exhibited in John Cleland’s notorious book. There are
similar publications, secretly distributed at the present day, which
would revolt the most worldly libertine.
Indeed, the dissemination of descriptive debauch should not stand
on a legal par with the publication and distribution of ordinarily
indecent books, such productions, for instance, as those named in the
recent Bow Street case. With regard to these latter publications, all
of which, in their original state, were examined and condemned by
the present writer, prior to the police prosecution, crudity of tone
and workmanship were as conspicuous as defective decency. The novel
translated from the French of Marcel Prévost was almost as careless
and rough in its finish as the English novels which fell under the
destruction order at the same time. Though all of these publications
were in places definitely indecent, unquestionably so, they did not
approximate the filth which finds a more secret means of distribution.
Undeniably, it is extremely difficult as a rule to obtain information
which will reasonably lead to a conviction. Much the same may be said
in connection with the sale of indecent photographs, “pictures,” etc.
This disgusting traffic appears to exist, if it does not actually
thrive. An alien, one of those aliens clothed in the name of “Harris,”
as it happened, received a sentence of three months’ imprisonment, to
be followed by deportation, from the Common Serjeant in February, 1911,
for selling indecent photographs. Cases of the sort arise from time to
time, but it may be assumed that the majority of the offenders escape
scot free, for the simple reason that they do not get “found out.” The
topic is not sufficiently interesting or important to warrant further
notice.
What actually concerns writers, publishers and the public at the
present time is the betterment of the system of freely circulating all
books. This may be taken to refer, not to the “library ban,” which is
influential only from the financial standpoint, but to the application
of the law controlling questionable literature.
The police authorities scarcely indulge in wild hunts for the ghosts
and goblins of indecency until their attention has been very definitely
drawn to the existence of a likely field. That is to say, complaints
come in, and in certain cases they are gone into, with the result that
a prosecution ultimately follows. There are, perhaps, plenty of people
who spend their time in searching for indecent paragraphs in trumpery
novels. It is on their initiative that the police are compelled to
have the works complained of examined, and, if the same are found
to be strong enough to support a prosecution, a prosecution is the
result. Now the whole machinery associated with such a prosecution is
cumbersome, variable and unsatisfactory. The most choice work of genius
may fall under the same axe as the literary outpourings of a woman
better adapted to the _métier_ of a _cuisinière_. It is the difference
in quality and the similarity in fate which demand criticism. The
police defence would be that there exists in the works of both types
the common fault of indecency. (The word “police” is used for want of
a better descriptive title for the persons actually engaged in the
examination of questioned publications.) That may be true enough.
Suppose, however, that a worldly magistrate chooses to discriminate,
suppose also that he is fortunate in having some tangible ground for
doing so, the decision of the case must tend towards the support of the
able writer and the condemnation of the material produced by the writer
whose _raison d’être_ is base.
Setting aside all question of literary values, there is one notorious
novel which seems to be as indecent in some places as the novel
“According to St. Paul.” The former--it must be left nameless here--was
sold openly for several years in London, and, so far as one knows, is
still sold openly. The latter, in its original form, at any rate, was
extinguished twice over at Bow Street. Now the distinction between
the two novels lies almost wholly in the quality of the writing. If
this question of quality were to rigidly decide the result of every
prosecution, there would be no need to say any more. But it forms
an untrustworthy precedent, battered down in dozens of other cases.
Consequently, the pursuivant of letters is left confronted by doubt
and uncertainty. If he be endowed with skill, he is forced to use such
skill in evading much which may be artistic and human in its import.
He must treat his subject with great circumspection, hamper himself
at every point, and leave his best efforts untried. For, after all,
“best efforts” in the writing of novels are often those produced by
the treatment of passion, not necessarily indelicately. Passion is,
however, a pitfall to the English or American novelist.
A writer who knows “things” has a better chance of escaping difficulty
than one who flounders into print on a meagre social knowledge. This is
the utmost that can be said, and it is not satisfactory either to the
writers themselves, or to the publishers. In short, what really seems
to be needed is a system of censorship. It would protect publishers
and printers, and save writers some anxiety. It should, perhaps, take
the form of a small department, non-political in character, with a
staff of qualified persons, whose duty it would be to read and “pass”
or “reject,” subject to alteration, all manuscripts submitted by
publishers.
The censorship should not be constituted for the purpose of greatly
restricting freedom of expression, but, rather, only to check gross
license, with impartiality. Dramatic works might be dealt with by the
same authority as novels, memoirs, and other classes of literature.
Unless the whole scheme of a novel were to run on some revolting moral
question, it should not be condemned by the censorial authority, but
only those portions of it, individual words, lines, paragraphs, or
pages, impartially judged to offend. Once the work submitted had been
passed, subject to the deletion or alteration of condemned passages,
the possibility of a later questioning should be denied. In this way,
the irresponsible fanatic, who now acts as a police irritant or goad,
would have to turn his attention to other spheres of activity. The
existence of the censorship would therefore perform several services.
It would supply publishers and printers alike with definite knowledge
as to their immunity from legal attack. It would serve the purpose of
a barrier between the public and the publisher of obscene or indecent
or blasphemous prints. It would supply a certain sense of security to
the writer, whose copyright royalties are, under present circumstances,
frequently in danger. It would also relieve the magistracy and the
police from a comparatively trivial, though time-filling branch of
work. Some utility of purpose would also be fulfilled where plays are
concerned.
A great deal of gratuitous newspaper advertisement recently attached
to the writer of a play, which was refused the license of public
performance by the Lord Chamberlain. The whole disturbance was idle
enough in its effect, though it helped to recall the existence of the
Examiner of Plays--a person deputed by the Chamberlain to carry out the
work of censorship in practice. Political reasons were said to have
actuated the refusal of a license to produce the play. Such reasons
could also be made the basis for similar refusals (in connection
with dramatic productions, at any rate) on the part of the censorial
authority here advocated.
A censorship would free from the shackles of doubt and uncertainty all
those persons who contribute to the production of a book. An author
would know that at worst his writing was liable to expurgation. In
practice, this could even be carried out by the author himself, in
accordance with the directions supplied by the censorial authority. The
re-submission of the MS. to such authority would mean nothing more than
a further delay, of scant importance alongside the sense of security
afforded by the process.
On the whole, there can be no argument against censorship as strong
as the argument in favour of it, and that is the grossly inconsistent
method of dealing with _risqué_ literature at the present day.
CHAPTER VIII
CAPITAL PUNISHMENT, MURDER AND SUICIDE[28]
Murder, which is the summit of evil-doing according to human canons
is at the same time the most natural act in the world. The so-called
“unwritten law” which weighs up the evidence in favour of a man who
kills his wife’s lover, is not without justice and a sense of fair
play. In England, there is plenty of unwritten law, but it has nothing
whatever to do with the _crime passionel_. However, if _A_ enters the
bedroom of his wife and discovers this unfortunate woman with _B_, _in
flagrante delicto_, to misuse an expression, and he shoots _B_ on the
spot, he stands a very good chance of escaping the supreme punishment
of the law. But if _A_, on seeing his wife in the act of adultery
with _B_, leaves the room, goes downstairs, obtains possession of
his revolver, and then returns to kill _B_, the position is somewhat
different. This particular example supplies evidence of _mens rea_, or
criminal intent. _A_ is not acting in a spontaneous fashion, for he
deliberately goes away and then returns, with murder in his mind. In a
good many parts of the world, either way would be justifiable, and, one
must admit, with some reason.
There is nothing more far-reaching than adultery in a married woman.
Her future offspring may not be that of her husband, and, at best, he
believes her body to be tainted with a poisonous contact. The real
idea of marriage is to keep one woman exclusively for one man, by whom
it is intended she should fulfil the functions of maternity. To have
suspicion of outside intercourse is to destroy everything which is most
profound in the union.
It is usual to divorce a wife who commits adultery, in England: to kill
her lover and to ostracise her from her home are methods left to other
races.
In America, the Thaw case, which attracted more interest than the
facts deserved, was treated in an ultra-civilized manner. Perhaps, if
the events associated with this _cause célèbre_ had taken place in
another State of the Union the results would have been different. It
is true that the relations between Thaw’s wife and White, the murdered
man, had not been resumed after the marriage, though the incidents
immediately preceding the shooting at Madison Square Garden should
have gone a long way towards saving Thaw. Thaw was dining at the Café
Martin, a well-known restaurant something after the type of the Café
de la Paix. His wife, the former victim of White, was with him. White
entered the restaurant and proceeded to make offensive remarks from an
adjacent table. Thaw, no doubt excited by alcohol, was very properly
incensed. Later on, after the incident had preyed on his mind, he
pulled out his revolver and shot White dead. This was at the Madison
Square Roof-Garden. If White had not made offensive remarks at the
expense of Thaw and his wife at the Café Martin, it is most improbable
that any shooting would have occurred. But what with Thaw’s knowledge
of White’s intimacy with the girl in her early days, and the fact that
the offender used it as a taunt in a public place, there is little
wonder that the _dénouement_ was murder. The strict critic may say that
Thaw should not have made such a marriage.
The instinct to kill in a man confronted by another who has been
intimate with the woman who became his wife must be very strong,
particularly among heated temperaments. It is not necessary,
one may perhaps assume, to have “brain storms,” paranoia, or
incipient insanity, to produce the exact state of mind, under given
circumstances, which prompted the shooting at Madison Square Garden.
One somehow feels that injustice has been done the “murderer” by
stamping him with the brand of lunacy. It was the only alternative,
however, as the case went, to the electric chair.
The system of electrocution, meted out to murderers in the State of
New York, is about as bad, or even worse, than hanging, with which it
is intended to deal briefly in the present chapter. There is nothing to
be said against capital punishment, at least on the part of anyone who
has examined the question in practice, but hanging as the means is an
antiquated survival of the witchcraft age (though one vaguely remembers
that “witches” were burnt!).
The French guillotine is a cumbersome contrivance, involving the
employment of an expert manipulator, with trained assistants, and
impedimenta. In Germany, where the executioner wields an axe, there is
the possibility of an absence of precision which fails to recommend
the method. Quite a dramatic scene was witnessed at the execution of
a female poisoner in the Kaiser’s dominions the other day. The story
suggested a Sanscullotic (Carlyle is responsible for the word!) outrage
of the French Terror. No, the executioner with the axe is a poor way of
fulfilling the last rites of the law.
If the Kneller portrait of James Scott, Duke of Monmouth, painted
after execution, is faithful, the executioner was singularly adroit
with his axe. But the use of the axe depends too much on personal
dexterity in the evasion of the atrocious. As an institution it is,
therefore, to be condemned. Hanging, on the other hand, has the Lee
case as a perpetual warning against it. (It will be remembered that a
murderer named Lee would not “hang.” He ultimately had his sentence
commuted to life imprisonment, from which, as an anomaly of the law,
he emerged in good health, after serving some twenty years.) It is
elaborate, and anything elaborate, in respect of such a matter as
the death penalty, savours of anachronism. Of course, there is some
traditional or legendary nonsense about the ignominy of hanging as
opposed to execution by the axe, but humanly enforced death is as
bad in one form as in another so far as the victim goes, so that the
argument hardly impresses one with its strength. Then, too, the whole
scheme is barbarous in practice; not that the would-be murderer is more
deterred by the fear of hanging than he would be by the fear of death
from a volley of muskets, but the machinery necessary for carrying out
a death sentence by hanging is out-of-date, crude, and not compatible
with the advance of the times. By far the simplest, cheapest, most
effective, worthy means of supporting the majesty of the law in its
supreme act of retribution is by the shooting of murderers on the day
set for execution. Half a dozen soldiers, drafted from the nearest
barracks, could be ordered to fire a volley at the condemned man in
the prison yard, or in any other place convenient to the authorities.
The inclusion of soldiers need not necessarily be a stumbling-block.
Armed prison warders, with some substantial idea of the uses of a gun,
would fulfil the same purpose. Death, to the condemned man, would be
just as humane in the abruptness of its arrival as the “six foot drop”
(or whatever prison parlance and the height of the victim make it). The
only good thing about hanging is its comparative cleanliness. That is
to say, there is not a deluge of blood from the person hanged, as there
is in the case of one decapitated. That is all very well, but death
from a volley of muskets does not produce the effects associated with a
slaughter-house, either.
Hanging is little less ridiculous than the Chinese custom of
walling-in a parricide with masonry, air-holed to delay death. Indeed,
it is no more appropriate to modern ideas than death from the Tarpeian
Rock would be. It is quite inconceivable that the rope should have
stood firm as an instrument of execution as long as it has. In the
days, not so far back (as recently as 1868), when hanging was carried
out in public, it had a certain awe-inspiring influence on the ignorant
mind. But now that the death penalty is executed within prison walls,
the quickest, easiest, and least complicated method must inevitably
recommend itself as the best. Death by the volley of muskets should
take an easy lead, at any rate over hanging. To pinion a man, to stand
him against a wall, and to order a handful of troops to fire, are
acts simple and certain in their effect. Advance arrangements become
unnecessary. The boxing and burial of the dead body are no different,
after such an episode, than the boxing and burial after a criminal has
been hanged. The removal of the evidence of taking blood is a detail.
As a concession to the _soi-disant_ humanitarian, blindfolding could be
adopted to ameliorate the condition of the condemned.
The writer is no violent antagonist to hanging; he is merely of opinion
that it could be superseded with some advantage, chiefly because the
formula is based upon an antiquated conception of punishment, which
does not seem to him to be as promising as the simple method of
shooting down the condemned criminal.
A paragraph of some interest may be taken from the current press. It
is headed, _Optional Suicide: Choice for Murderers_, and it runs as
follows: “A novel law providing an alternative to hanging for murderers
on whom the death sentence has been passed was presented to-day to
the Nevada Legislature. It sets forth that any person about to suffer
capital punishment, may, if he pleases, swallow a dose of hydrocyanic
acid. The new law was framed by a Code Commission, partly as the result
of the difficulty in finding an official executioner in Nevada. The
officers of the law, it seems, have frequently objected of late to
figuring in executions, on the ground that though the death sentence is
provided by the law, they are in fact guilty of voluntarily bringing
about death. The members of the Code Commission, therefore, adopted
a suggestion based on the cup of hemlock drunk by Socrates. If the
new law is passed by the legislature, condemned murderers, after the
sentence has been pronounced, will be allowed in future immediately
to designate the method of death they prefer. Ten minutes before the
time appointed for execution, a physician will visit the prisoner in
his cell and hand him (or her) a packet of poison, and explain its
effect and the proper way of taking it. The Bill sets forth that on
the receptacle containing the poison it shall be plainly written:
‘There is contained herein a sufficient quantity of hydrocyanic acid
to cause instantaneous death. You are authorised to take the same for
the purpose of carrying into execution the sentence of death heretofore
legally pronounced against you.’ It is further provided that ‘if the
defendant, after having elected to take the hydrocyanic acid, shall
fail or refuse to take the same, he shall forthwith be hanged by the
neck until he is dead.’ The majority of the Legislature are reported to
favour the Bill as framed by the Code Commission.”
The alternative of suicide given to the person under death sentence
does not recommend itself to English ideas. The sensibility of “the
officers of the law” in Nevada should be remedied by an infusion
of new blood. It is noticeable that the suicide suggestion is an
alternative to hanging, which appears to be the form usual in the State
of Nevada. Perhaps, the execution by a volley of muskets would appeal
to the requirements of the Nevada Legislature?[29] Particularly, as
the shooting could be done by the soldiery, or by marksmen other than
“officers of the law.”
Where several persons fire at one and the same time, it is practically
impossible to say which one is responsible for the shot which actually
causes death in the person fired upon. This ignorance has often helped
to soothe the soldier of sensitive conscience when, with others, he has
had to obey the order to fire on a spy or other person liable to death
under martial law. This indirectly suggests one of the most curious
possibilities of legal inadequacy. What is the position of a soldier
ordered by his officer to fire on a mob? Metaphorically, he is between
the devil and the deep sea. If he fires on the mob, he may be called
upon to account for his act to a civil tribunal, and thus be found
guilty of murder and hanged. While, on the other hand, if he does not
fire upon the mob, when so ordered by his officer, he may be tried by
court martial and shot!
To turn from murder to suicide and attempted suicide, much suggests
itself as anomalous and even absurd in the laws and customs of England
in this connection. There is an element of farce in the arrest,
detention and prosecution of some wretched man or woman who has
unsuccessfully endeavoured to escape from life.[30] Suicide attracts
numberless persons, excited by neurotic impulses. Sometimes a woman,
_enceinte_ and deserted by her lover, throws herself into a canal
or into the river. A man guilty of misappropriation, on the verge
of having his misdeed discovered, takes poison, shoots himself or
tries to jump in front of a railway train. If the poison comes up,
if the shot is inaccurate, or if there is a pit of salvation between
the railway metals, the would-be suicide may find himself before a
magistrate the next morning, with a burly policeman as his accuser.
A well-meant anomaly. When it has run its course, the accused may
be proceeded against by the person who has suffered through his act
of misappropriation. There are women who in moments of pique or
unreasoning rage, do away with themselves, largely because they cannot
conveniently vent it upon the cause of their discomfiture. Among
women-servants of inferior type, there is a tendency to commit suicide
because of some faithless lover, or other cause. These misguided
creatures generally first write a pathetic letter, disjointedly stating
their grievances, with the full confidence that it will be published in
the newspapers of the Sunday following the inquest. This strange vanity
throws a pitiful ray on the phases of the ignorant mind. Of course,
suicides are not confined to the lower or intermediate classes, but
they are more generally found among persons whose lot is not alleviated
by fortune or gentle birth.
Suicide is not always incomprehensible, though the coroner’s jury,
with its constant verdict, “during temporary insanity,” would seem to
make it so. There are plenty of people afflicted by disease, medical
men among them, who cut their throats or shoot themselves in desperate
resignation. For purposes of convenience, they are described as of
unsound mind by the considerate jury. Admittedly, an individual who
takes his own life is, _primâ facie_, unbalanced--the act indicates it.
Then, too, physical disease, which has preyed upon a man’s health until
his judgment has become warped, produces a form of _quasi_-insanity.
The suicide verdict, “whilst of unsound mind,” may also be agreeable
to surviving relatives and persons with claims against insurance
companies, but, strictly speaking, its accuracy is generally doubtful,
unless a “warped” mental state, hysteria in women, and the product of
the goadings of misfortune, are symptoms of definite insanity. If this
is so, there are few people in the land who approximate “sanity.” Of
course, in subjects who advance to the length of suicide the defects
specified have reached the stage of personal dominion, or, under
another name, _idée fixe_, in an acute form. This may technically
justify the insanity verdict, but it is questionable whether anything
else would, if one makes allowance for class and ignorance.
By the same process, the man who is goaded into theft by sheer hunger
must likewise be insane. His misfortunes have produced the hunger and
the hunger the theft. Thus desperation is often forced upon a man by
want of funds, something which means prospective, if not immediate,
hunger, and the sense of desperation in its most active state brings
about suicide. Whitaker Wright, the convicted felon, committed suicide
to escape a term of penal servitude. He had a reasonable, if not a
justifiable, motive for his act. So far as one remembers, off-hand, no
“temporary insanity” verdict was recorded in his case. Its balsamic
effect is, however, demanded in countless instances where suicides
have been prompted by equally explainable motives. Altogether, the
coroner’s jury’s verdict, of “suicide whilst of unsound mind,” is
generally inconsistent with the actual facts which led to the act of
self-destruction.
But the greatest anomaly of all in relation to the verdicts of
coroners’ juries is the murder verdict at an inquest. Why should
a perfectly irresponsible body, for a coroner’s jury _is_ an
irresponsible body in deciding the guilt of an accused murderer, find
_A_ guilty of the wilful murder of his wife _B_ before the Grand
Jury[31] has even found a true bill against _A_? The practice is
utterly absurd. (It may be said here, in parenthesis, that it seems
a waste of public money to carry on a police court prosecution and
proceedings before the coroner in connection with the same murder
charge. It should be noted that an accused person can be committed
for trial on the coroner’s warrant, though it is usual for the police
magistrate to do the committing.) It will be remembered that the
notorious Crippen case occupied the attention of a coroner and his
jury for some little time. There, certain fleshy remains found buried
in the cellar of a house in an outlying district of London, formed
the subject of the inquiry. It was alleged that they were portions
of a woman’s body. No bones were discovered by the police, and a
good deal of speculation was rife as to fixing the flesh with the
hall-mark of identity. It was admitted from the outset that the flesh
in question was human flesh, but beyond this a difficult task seemed to
lay before the authorities. It was made less irksome by the presence
of an operation scar, which turned out to have been on the body of
Crippen’s wife. The coroner’s jury ultimately found that the flesh
was the flesh of Cora Crippen, _alias_ “Belle Elmore,” and that H. H.
Crippen, formerly her husband, was guilty of her wilful murder. There
was no reasonable doubt as to the accused man’s guilt from the first.
He had carried on a practice as a medical quack, and in the course
of his business had employed a typist, Ethel Le Neve, or Neave, with
whom he cohabited. The Crippen woman disappeared somewhat suddenly;
inquiries were then set on foot by her friends to ascertain the truth,
which the husband failed to supply. Soon after receiving a visit from
a police-inspector, H. H. Crippen himself disappeared, and it was only
after frantic efforts had been made that the man was discovered to be
on board a vessel in mid-Alantic. Accompanied by his mistress, he then
fell an easy prey to his pursuers--after half Europe had been searched
for him in vain. The murder of which he was accused was a peculiarly
atrocious one. After poisoning his victim, he had deliberately set his
partial knowledge of anatomy to account by dismembering the corpse,
disposing of the bones and secreting the flesh. The man’s remarkable
nerve, employed in a legitimate channel, might have made him successful
in life, instead of making him the object of a hue-and-cry from St.
Petersburg to San Francisco. The story in detail, is newspaper history.
To return to the legal side of the matter, which has numerous less
notorious parallels, Crippen had been found guilty of the wilful murder
of his wife in the coroner’s court, though he had not yet been tried
by any jury qualified by law to convict him of the crime. To point
out a further anomaly, _i.e._, the fiction that an accused person is
assumed to be innocent until proved guilty, it may be argued that up
to the time of his trial at the Central Criminal Court, Crippen was
technically an innocent man, though he had already been found guilty
of wilful murder by an unauthorised body of jurors! Such a hopelessly
inconsistent state of affairs is grotesque in this country which
is held up as a pattern of justice and legal perfection generally.
Of course, in the Crippen case there was no sort of doubt whatever
as to the accused’s guilt; the case is here quoted because it may
be fresher in the public mind than many other cases, which portray
similarly anomalous features. At some trials, jurors are subjected to
downright inconvenience with a view to preventing their contact with
prejudicial persons or prints. In the Crippen case, the members of the
Old Bailey jury may reasonably have been expected to see newspaper
reports dealing with the verdict of the coroner’s jury. If they did
so read the information contained in these reports, they knew that
Crippen had already been _found guilty_ of the wilful murder of his
wife, Cora Crippen, a crime for which they were about to try him. Truly
enough, Crippen was convicted of murder at the Old Bailey, on evidence
of a remarkably satisfactory character, taking into consideration the
complexity of the original clues. But though this is in fact the case,
there is no gainsaying the grossness of the system which permits a man
to be publicly found guilty of a terrible offence for which he has not
yet even been tried.
The coroner’s jury’s verdict of “wilful murder” should be relegated to
ancient history in these practical times when precision and definity
rule all things. A coroner’s office gains no lustre by submitting its
holder to the satirical function of hearing verdicts which are not
verdicts in law or practice, but which, nevertheless, are liable to
confuse the ignorant mind and to do harm where good is intended. It
should be remembered that jurors are not as a rule drawn from a class
of original thinkers, persons, that is to say, who are intellectually
trained to discriminate--to judge for themselves. Even if they were,
the existing custom of allowing a murder verdict to be returned before
a case goes for trial is both prejudicial and improper.
FOOTNOTES
[28] See Appendix D.
[29] Some such scheme appears to have been adopted since this chapter
was written.
[30] “No fewer than four persons were charged at Marylebone
police-court this afternoon with attempted suicide.
“The first was a domestic servant, who was found lying in the road,
having taken poison.
“The Rev. Mr. Shaw, of Dulwich, said she had been in his service
sixteen months, but left a week ago to enter the service of the sister
of a great friend of hers. The situation was a great disappointment to
her, however, for ‘she was accustomed to be in rather refined service,’
and she complained that she was unable to wear any of her new frocks.
The result was that she left, and her great friend had thrown her over;
hence her position in the dock.
“Mr. Paul Taylor remanded her, saying he had never known a woman to
attempt suicide for less adequate reasons.
“The other defendants were men. Two were remanded, and the third was
discharged, as he denied that he wanted to kill himself--he bought the
laudanum found on him for his teeth.”--_Current Evening Paper._
[31] Reference to Grand Juries reminds one that the late Mr. Justice
Stephen (Sir James Fitz-James Stephen) “expressed his inability to
understand why a man should be presumed to be innocent when a Grand
Jury have sworn that they thought him guilty.” (Mr. A. T. Carter,
D.C.L.) It has been pointed out to the writer, by the way, that
the members of a Grand Jury sometimes throw out a bill, because,
“Otherwise, what are we here for?” In other words, without applying
any very special discrimination, they take upon themselves a function
opposed to the expert judgment of the committing magistrate, who has
heard all the evidence.
CHAPTER IX
LEGITIMATION[32]
The legitimation of natural children by the subsequent marriage of
their parents does not apply in England. It is for many reasons a
defect in the law that this should be so, inasmuch as the process of
_legitimatio per subsequens matrimonium_ often rights a wrong and does
justice to those who are kept out of a natural right by the unnatural
state of the law.
The only way by which the ordinary law can be surmounted respecting
the legitimation of natural children in this country is by means of a
Private Act of Parliament, an expensive, if not a difficult, instrument
to obtain. Among persons of limited income, the financial expenditure
necessary is a definite barrier.
In these times when fact rules, not the fiction of a long past,
there can be little excuse for keeping back the clock in the matter
of legitimation. If a man has lived with an honest woman and had
children by her, he ought to be able to give those children every
possible privilege and right by performing with their mother the
simple requirements of the law relating to marriage. The Private Act
of Parliament now needful to satisfy the English law should be made as
obsolete as the Private Act of Parliament required to secure a divorce
before the year 1858. Great benefit would accrue to the community by
the easy change suggested. It is not possible to fathom or gauge the
magnitude of a thing like the illicit union. It exists here and there
among all classes. Where there are children, there would be a distinct
incitement, were legitimation by subsequent marriage in force, to the
legal tie. The artistic temperament, for want of a better name, is
responsible for many such unions, and their legalisation would be a
temptation to a man who desires to leave his name and blood on the
earth without having to start afresh with some other woman on the legal
system. The healthy and characteristic appearance of his own living
stock are forceful incentives towards freeing it from all disability in
law, the more so, when he knows that the mother was, and is, moral in
instinct and in fact.
In his _Roman Law_, Lord Mackenzie makes some interesting
references to the theme. “Apart from the effect of legitimation,”
he writes, “the Roman law only considered those children lawful at
their birth who were begotten in marriage. It is a peculiarity of the
English law that it does not concern itself with the conception, but
considers a child legitimate who is born of parents married before the
time of birth, though they were unmarried when he was begotten....
The legitimation of children _per subsequens matrimonium_ originated
in a constitution of Constantine, which has not reached us, though
its tenor is given in a law of the Emperor Zeno, who renewed it. The
import of it was, that persons who had been living in a state of
concubinage, which was then a condition of society not condemned by
Roman customs, might, by entering into marriage, render the children
born in that state legitimate, provided the woman was _ingenua_, or
free-born, and the man had not already children of a lawful wife. The
general object of this law probably was to encourage persons who had
been living in concubinage to enter into marriage. Justinian extended
the law of Constantine, by declaring that children born in concubinage
should be legitimate generally, whether the father had legitimate
children by a lawful wife or not; and he removed the distinction as to
the woman being _ingenua_ or _libertina_. The children so legitimated
were subjected to the paternal power, and entitled to all the rights
of lawful children.... By Roman law the privilege of legitimation _per
subsequens matrimonium_ was strictly confined to the children of a
concubine, and did not extend to any other description of bastards....
Another kind of legitimation, _per oblationem curiæ_, was introduced
by Theodosius II., A.D. 445. As the duties of a _decurio_ were very
onerous, and accompanied with risk, a natural son who undertook the
office was thereby rendered legitimate. A natural daughter who married
a _decurio_ had the same privilege. Finally, Justinian added a third
species of legitimation, _per rescriptum principis_, when the emperor
declared natural children legitimate upon the requisition of the father
in certain special circumstances; as, for instance, when marriage
with the concubine had become impossible, and there were no lawful
children--or when the father, who had from some fortuitous cause been
prevented from legitimating his natural children in his lifetime,
declared in his testament that they should succeed to him as lawful
children and heirs _ab intestato_.... The doctrine of legitimation
by subsequent marriage is said to have been established in the canon
law by two constitutions of Pope Alexander III., preserved in the
decretals of Gregory. The canon law was more indulgent than the
Roman law, in granting the privilege of legitimacy not merely to the
offspring of concubinage, but to children begotten in fornication,
when their parents were afterwards married, provided the father
and mother were capable of contracting marriage at the date of the
sexual intercourse.... Legitimation by subsequent marriage was never
acknowledged by the law of England. When the clergy struggled to
introduce the rule of the canon law, it was indignantly rejected by the
famous statute of Merton, the English barons declaring with one voice,
‘quod nolunt leges Angliæ mutare quæ usitatæ sunt et approbatæ.’ From
the earliest period the English law has considered a child born before
marriage (_ante natus_) as illegitimate. And it has been decided,
that even where the child is born and the parents are subsequently
married in a foreign country, the law of which allows legitimation by
subsequent marriage, he is nevertheless incapable of inheriting land
in England.... On the other hand, the rule of the canon law, which
allowed the legitimation of all bastards, provided they were not the
offspring of an incestuous or adulterous connection, has been followed
both in France and Scotland, not by authority of the decretals, but
_in consequence of the equity and expedience of the rule itself_.[33]
By the French Civil Code (art. 331-333) it is declared: (1) ‘Children
born out of wedlock, other than those born of an incestuous or
adulterous intercourse, may be legitimated by the subsequent marriage
of their father and mother, provided the children have been legally
acknowledged before marriage, or in the act of celebration itself. (2)
Legitimation may take place even in favour of deceased children who
have left descendants, and in that case it operates in favour of these
descendants. (3) Children legitimated by subsequent marriage shall have
the same rights as if they had been born of that marriage.’... By the
law of France, marriage makes the children of an illicit connection
legitimate, although one of the spouses has, after the connection
and the birth of the children, contracted a marriage with another
person, and the parents have only married after the dissolution of
that marriage. As the child legitimated is considered to be born of
the marriage which has made him legitimate, he cannot participate in
a succession which has opened before that marriage, though subsequent
to his birth. For the same reason he cannot claim any preference,
in respect of mere priority of birth, in any question of succession
with the children of the intermediate marriage.... In Kerr v. Martin,
which was elaborately discussed in the Court of Session, the question
was raised, whether a marriage of either of the parents with a
third person, after the birth of a natural child, formed a bar to
legitimation by the subsequent marriage of the parents. Though the
judges were divided in opinion, the Court, by a majority, decided that
the child was legitimate, and that no mid-impediment was created by
the intervening marriage.... In Scotland, legitimation by subsequent
marriage confers upon a bastard the rights of a lawful child. Besides
being entitled to legitim, he succeeds under a destination to lawful
children. In any question with the children born of the bastard’s
parents in lawful wedlock, he has the same civil rights, as regards
succession and otherwise, as he would have enjoyed had he been born in
lawful marriage. But where there is lawful issue of an intermediate
marriage by one of the parents with a third person, a child legitimated
by a second marriage seems only a lawful child of the family as
becoming so by the second marriage, and therefore it is thought he
can claim no preference in respect to primogeniture or priority of
birth, which would have the effect of defeating or prejudicing the
rights of succession of the children of the first marriage arising at
their birth. According to this view, if the father had a natural son,
and after this a lawful son by a marriage with a third person, and
then entered into a second marriage with the mother of the bastard,
the lawful son by the first marriage would be entitled to the Scotch
heritage _ab intestato_, and could not be deprived of that right by the
legitimation of the natural son arising from the _second_ marriage.”
An interesting point of French law, which remains controversial in
Roman and Scottish law, according to the authority of Lord Mackenzie,
is that which decides the ineligibility of a child _conceived_ in
adultery to be legitimated by the subsequent marriage of the parents,
even though at the time of such child’s birth the parents were free
to marry. There are other little differences between the French and
Scottish laws relating to legitimation. On the whole, Scotland is
well equipped to deal with all such questions. It remains for England
to follow suit. There is no conceivable room for doubt that if a man
wishes his natural children to become legitimate, he should have the
power to make them so, without the considerable formality of an Act
of Parliament. An Act of Parliament is of course a perfect means of
accomplishment in the sense that it is a law unto itself, but the
expense and difficulty of obtaining such an instrument put it on
an impracticable plane, beyond the reach of nearly all. Though the
interest of many people in legitimation may be merely abstract, the
subject is of some marked importance. The laws of any country are
incomplete without reasonable provision for _legitimatio per subsequens
matrimonium_.
Interesting cases such as the recent Sackville peerage claim and the
earlier claim by “Viscount Hinton” to the peerage of Lord Poulett,
whom he alleged to be his legitimate father, if one may turn a phrase,
come from time to time before the English courts. Neither of the two
claims mentioned was successful, but there appeared to be little doubt
that the claimants in both cases were the offspring of the peers in
question. To fall at random upon history one remembers that William
the Conqueror was a natural son. The Duke of Monmouth, who married
the Countess of Buccleuch (in her own right) was a natural son of
Charles II., like the ancestor of the Duke of Richmond and Gordon, the
ancestor of the Duke of Grafton, and the ancestor of the Duke of St.
Albans, among others. The absence of a legal tie does not prevent the
perpetuation of blooded stock, though convention and policy have made
the tie a very necessary formality.
FOOTNOTES
[32] See Appendix E.
[33] Mr. Chester’s italics.
NOTE IN CONNECTION WITH THE NEXT CHAPTER.
At the moment of going to press, a singularly strange case is
reported in which a convicted murderer, Charles Ellson, has had his
conviction quashed by the Court of Criminal Appeal, irrespective of
the question of his guilt. The report in outline is as follows:
“The first successful appeal made by a person convicted of murder
since the establishment of the Court of Criminal Appeal was decided
yesterday by that tribunal, which quashed the conviction of Charles
Ellson for the murder of Rose Render in Clerkenwell. The man, who was
present in court, was immediately released.
“The decision was on technical grounds, apart from the question of
the prisoner’s guilt or innocence, and Mr. Justice Darling, giving
the judgment of the court, pointed to the case as strengthening their
often expressed opinion that the law should provide the court with
power to order a new trial in such cases.”--_Daily Mail_, Sept. 29,
1911.
CHAPTER X
CRIMINAL APPEAL AND THE BALL CASE
The Criminal Appeal Act is brought into operation nowadays by almost
every notorious murder case. Crippen availed himself of its provisions,
and, again, more recently, Morrison, the South London murderer, drove
his appeal through the new Court.
The end of sub-section (3), section 20, of the Act [see Appendix
F], contains a mildly confusing line, to say the least. It runs,
“But shall not apply in the case of convictions on indictments or
inquisitions charging any peer or peeress, _or other person claiming
the privilege of peerage_, with any offence not lawfully triable by
a court of assize.” Why a person other than a peer or peeress who
claims the privilege of peerage should be entitled to any special
consideration it is impossible to say. A claimant unless his claim has
been admitted, when he ceases to be a claimant and becomes a possessor,
cannot conceivably be entitled to any right appertaining to the dignity
claimed. The only persons entitled to the privilege of peerage are
peers and peeresses, and a claimant to any such privilege must perforce
be a peer or peeress or else be a person with no right whatever to the
privilege of peerage.
The case of R. _v._ Ball and Another is of enormous interest and
importance, so far as the workings of the Court of Criminal Appeal
are concerned. It suggests very forcibly the need for definitely
detaining all criminals pending final appeal, where any intermediate
step may allow of their liberation. _The Times_ newspaper for December
16, 1910, reports the case in the following words: “HOUSE OF LORDS.
Criminal Appeal. Director of Public Prosecutions _v._ William Henry
Ball.--Director of Public Prosecutions _v._ Edith Lilian Ball.
(_Before the_ Lord Chancellor, Earl of Halsbury, Lord Ashbourne, Lord
Alverstone, Lord Atkinson, Lord Gorrell, Lord Shaw _of_ Dunfermline,
Lord Mersey, _and_ Lord Robson.) This was the first appeal to the House
of Lords from the Court of Criminal Appeal, consisting of Justices
Darling, Pickford, and Coleridge, who quashed the conviction against
the present respondents for incest, which was made a criminal offence
by an Act which came into operation on January 1, 1909. The trial took
place at the Central Criminal Court before Mr. Justice Scrutton, who
sentenced the respondents. The Crown appealed under a section of the
Criminal Appeal Act, 1907, as was reported in _The Times_ of November
30.... The Attorney-General (Sir Rufus Isaacs, K.C.), Mr. R. D. Muir,
Mr. Rowlatt, and Mr. Graham Campbell appeared for the appellant; Mr.
Holman Gregory, K.C., Mr. Forrest Fulton, and Mr. Eustace Fulton for
the respondents. The arguments of counsel turned on the admissibility
of certain evidence tendered by the prosecution. The Lord Chancellor
moved that the order of the Court of Criminal Appeal be reversed,
and said that evidence of previous guilty relations between the
respondents was admissible, not to prove the evidence of a _mens rea_,
but in support, having regard to the proved facts, of the particular
charges made in the indictments. The principle that one offence is
not established by proof of a similar previous offence was one which
ought to be jealously guarded; but in the present case the evidence was
clearly admissible.... Lord Halsbury agreed with the Lord Chancellor
for the same reasons. The other noble and learned Lords concurred.
Appeal allowed.”
In _The Times_ for December 20, 1910, the same case is again
reported, this time in its aspect as a novelty. _The Times_, after
giving the heading, “COURT OF CRIMINAL APPEAL. House of Lords’ Reversal
of Criminal Appeal. (_Before the_ Lord Chief Justice _of_ England,
Mr. Justice Pickford, _and_ Mr. Justice Avory)”, states, “Mr. Graham
Campbell, on behalf of the prosecution, said that this Court a short
time ago quashed the conviction in this case, and on Thursday last
the House of Lords made an order reversing that order. The House of
Lords had no machinery for enforcing its order, and it was therefore
necessary to come back to this Court for an order to enforce it. The
Lord Chief Justice: If the order of the Court of Criminal Appeal is set
aside, you say that the conviction will stand? Mr. Graham Campbell:
Yes. The Lord Chief Justice: Have the two defendants had notice of
this application? Mr. Graham Campbell: Yes; the male defendant is
here, but the female defendant is not present.... Mr. Forrest Fulton
(Mr. E. Fulton with him) said he appeared for both defendants....
The Lord Chief Justice: The male defendant must now surrender....
The defendant having surrendered, Mr. Forrest Fulton submitted that
the intention of the Legislature in section 1, sub-section 6, of the
Criminal Appeal Act, 1907--the section which allowed an appeal to the
House of Lords--was that, so far as the individual defendants were
concerned, the order of the Court of Criminal Appeal, in quashing the
conviction, should be final. The decision of the House of Lords was
intended to be obtained for the guidance and direction of Courts in the
future. The object of going to the House of Lords was to get a ruling
on a question of exceptional public importance. The Court of Criminal
Appeal had exercised the function of the jury, and that Court, having
allowed the appeal from the conviction, the position was the same as if
the defendants had been acquitted by the jury.... Judgment: The Lord
Chief Justice, in giving the judgment of the Court, said that in their
opinion there was no doubt as to the power and duty of this Court. The
appeal from this Court to the House of Lords was successful, and the
order of the House of Lords was that the order of this Court should be
reversed, and the natural consequence was that the conviction, if he
might use the expression, was re-established. In these circumstances
the right procedure had been adopted--namely, to come to this Court,
which was a court of record, and apply to have effect given to the
order of the House of Lords, that was to say, to expunge from the
record of this Court the order which had been made setting aside the
verdict and entering a verdict of ‘Acquittal.’ It was said by Mr.
Fulton that this being an appeal by the prosecution, and this Court
having decided that the appeal should be allowed and a verdict of
‘Acquittal’ entered, the Court had no power to make a further order
in consequence of the reversal of their order by the House of Lords,
the decision of that House being, it was suggested, merely for the
guidance of Courts in the future. That was a very serious contention,
and was one which they could not adopt. By section 1, subsection 6, of
the Criminal Appeal Act, 1907, an appeal to the House of Lords might
be brought by the prosecution or the defendant or the Director of
Public Prosecutions if the _fiat_ of the Attorney-General was obtained.
If the defendant, in a case where the conviction had been affirmed,
could satisfy the Attorney-General that the case was one of sufficient
importance, he could take the decision of the House of Lords upon it,
and if he succeeded in obtaining an order of the House of Lords that
the decision of the Court of Criminal Appeal dismissing his appeal was
wrong, he was obviously entitled to ask the Court for an order entering
a verdict of ‘Acquittal’ and for his immediate release. When the
present case was before the House of Lords last week the question as to
the proper procedure was discussed, and an application to this Court,
which had full power to act in accordance with the order of the House
of Lords, was considered to be the proper course. As had been pointed
out by Mr. Justice Pickford during the argument, the finality of the
decision of the Court of Criminal Appeal was subject to the provisions
of the Criminal Appeal Act, 1907. It appeared to them that by virtue of
the decision of the House of Lords the conviction was restored, and,
if necessary, an order would be made amending the record in accordance
with the order of the House of Lords. The male defendant would remain
in custody to undergo his sentence. As regards the female defendant,
there would be an order for her arrest.... Mr. Forrest Fulton said
that the male defendant had originally given notice of appeal against
sentence as well as against the conviction. In view of what happened,
the question of sentence was not gone into. He (counsel) said he would
like a short time to consider as to this part of the appeal. The
Lord Chief Justice said the case could be put in the list again, if
necessary, early in the next sitting for this point to be considered.”
The Ball case brings out with dispassionate accuracy the utterly
fantastic possibilities of intermediate acquittal, followed by an order
for re-arrest. Whether the authorities, in this particular case, took
the precaution to carry out a very needful network of surveillance,
between the discharge of the prisoners by the Court of Criminal Appeal
(when the convictions were set aside), and the moment when the Lord
Chief Justice gave practical effect to the order of the House of Lords,
one does not know.
A prisoner once convicted at the Central Criminal Court should have
no very substantial grievance against law and order if later on he
is watched during an appeal _entr’acte_. He is in a vastly better
position than the prisoner convicted before the advent of the Criminal
Appeal Act, when the conviction usually stood until the sentence had
been worked out. The word, “usually,” is meant to add distinction
to the occasional commutation of a death sentence, and to any other
punitive abatement arising out of the prerogative of mercy, or from
personal good conduct on the part of the convict. Under the new system
of appeal, fresh opportunities are allowed the convict to obtain an
acquittal. It seems clear, therefore, that until the final appeal
has been settled, he should either be kept under close observation
or detained in custody. It may be un-English to spy upon the every
movement of any man, but it is practical and even necessary under the
possibilities afforded by the Act of 1907.
CHAPTER XI
CLIENT, SOLICITOR AND COUNSEL
A member of the Bar who ventures to touch such sensitive plants as
professional usage and etiquette must almost of necessity do so with
a sense of diffidence and modesty, that is, if he is not to outrage
his _esprit de corps_ and attack his own training in the traditions
of a great _métier_. The partial aim of this chapter is, in avoiding
revolutionary language, to state as clearly as possible what strikes
the travelled barrister as a radical disadvantage in his profession.
Usage has made it necessary, except in certain criminal court cases,
for a client to go to a solicitor--who in due course goes to counsel,
if the matter comes within the province of counsel. This intermediate
process of approach is doubly absurd in practice, when it is remembered
that counsel does not always confer with the solicitor himself but with
the clerk instead.
It is suggested that the cumbersome necessity for a client to go
to a solicitor before he can obtain access to first-class advice is
an anachronism at this time. The inaccessibility of all persons has
greatly diminished in recent years, with the result that to keep up
the system of inaccessibility in respect of counsel is often both hard
on the client and on counsel. It is one of the greatest barriers to
the Bar as a means of livelihood. It renders a great profession a mere
speculation, from the financial point of view. It hampers barristers
who would otherwise be able to do as well as the average holder of a
medical degree, something which does not apply at present. A doctor of
medicine, a bachelor of medicine, or a person qualified by the conjoint
diploma of the Colleges of Surgeons and Physicians, has a profession
opened up to him which at least may be used to stave off starvation,
but in the Bar degree there is no tangible reason why starvation
should not be the very first obstacle encountered by the newly-called
forensic aspirant. In practice, of course, members of the Bar are
generally possessed of funds, great or little, but in theory there is
no particular reason why a “gentleman of the long robe” should not be
in some difficulty for the price of his dinner a week after his Call to
the Bar! If one is attacked by illness, one does not send for a chemist
or go to a chemist and instruct him to obtain a physician. One at once
establishes direct relations with the medical adviser. Why should not
this apply equally to the relations of client and counsel? To defend
one’s interests, to secure one’s rights, to punish the wrong-doer,
to advise, are among the functions of counsel. Why should he be cut
off from a client by the obligations of professional etiquette? Why
should professional etiquette exist which places the profession to
which it refers at the mercy of another profession, quite separately
and independently constituted? It is ridiculous to suggest that a
barrister--unless he is extremely well-known, a financial leader of his
profession--is selected by the solicitor’s client. The solicitor more
often than not has the matter in his own hands. Certainly, there is
nothing to prevent a client from going to a solicitor and naming his
prospective counsel and insisting on the employment of such counsel,
but it is not usual as the relations are worked in practice. It is
partly due to the fact that the average client is so hopelessly out
of his element in matters of law. He frequently goes to a solicitor
in trepidation, to almost involuntarily submit to an uncomfortable
process, which the solicitor selects or inflicts at his discretion.
The law is not as a rule a recreation for anyone, save a few persons
whose minds have been turned by years of litigation. Consequently, the
uninitiated client trusts his solicitor implicitly. He is like wet
clay in the hands of a potter. He does whatever is recommended. It
is true that a solicitor has the knowledge that he may be answerable
in a court of law for want of skill in looking after his client’s
interests, but a client does not always know this. Indeed, even the
most rudimentary knowledge in connection with the law and its practice
is absent in the average person who goes to a solicitor for advice.
And yet the solicitor’s own knowledge is frequently little above that
of a mature office-boy, though he generally manages to apply it to
his own personal profit, at any rate! One does not tar all solicitors
with the same brush: there are many worthy exceptions; still, there
is something in the profession of a solicitor which seems to produce
certain generic failings.[34] The bad name of the profession in the
eyes of the public is not altogether unfounded; it is something more
than a cheap superstition or tradition. It gathers force when one comes
into frequent contact with some firms, which are licensed to practice
the law. The size of the offices and the number of persons employed are
not criteria of honesty: one knows of cases where seemingly prosperous
firms in the best and most central districts are no more trustworthy
than the solitary tottering scamp who struggles in a meagre garret. On
the other hand, it is a gamble to go to any solicitor, unless one has
definite evidence in advance that he is reputed to be just and honest
in his methods--and has practised his business for some years. There is
no scoundrel like an old scoundrel, of course, but a well-established
firm is _primâ facie_ better equipped with the requirements of a
client than some new firm which has not yet quite felt its feet. Long
established firms go wrong like newly-established ones, though they are
perhaps, generally speaking, less liable to, as they have more to lose,
if the practices they have carried on have been reputable. As a partial
standard of guidance it is, therefore, wise to go to an old firm
rather than to a new one. But general reputation, and recommendation
by former clients, are, after all, the best means of judging such
questions off-hand. One recalls an instance where a King’s Counsel,
retired from practice, recommended and upheld in obvious ignorance a
most shady firm, which, however, had exceedingly well-illuminated,
large, and central offices! With such an example in one’s memory, where
one knows the firm to be dishonest, one can but fear that the best
recommendations are apt to err.
The present writer holds no brief to attack the profession of the
solicitor: quite the contrary. But he is compelled to admit that he
has found many solicitors guilty of “dirty tricks” (for which there
are no punishments) towards their clients. “Dirty tricks,” a vulgar
but exactly expressive term, may be said to represent those acts in
which a man of honour or ordinary decency, even, could not indulge. To
cite some actual examples:--Deceitfully obtaining a signature charging
certain property with an exaggerated bill of costs on the tacit
understanding that a loan is to be the result; getting possession of
papers under a false pretext, where the circumstances are such that
no remedy exists in law for their recovery; disclaiming a telephone
message because its dispatch cannot be established in a subsequent
action; denying the receipt of a client’s funds until threatened with
the police. These and dozens of other somewhat similar occurrences
come to mind with clearness. That they are repeated daily all over the
country is almost indisputable. Petty deceit and meanness are qualities
which are to be found in a flourishing state in many solicitors’
offices. A straightforward and reputable solicitor would be the first
to admit as much. There is some satisfaction in knowing that there are
still many of the latter type left, though mischance often brings a
client into contact with the opposite variety, to his cost.
In suggesting that counsel should be enabled to advise a client
without the intervention of a solicitor, the writer is influenced by
the greater practical benefit of such a change. That branch of legal
business which is now in the keeping of the solicitors might remain
so; the system of carrying out the office work side of a case would
therefore be on the present basis. But, while the two professions
could continue to perform their accustomed functions, the alternative
for a client to approach counsel direct should be approved and
sanctioned. A freer atmosphere and greater scope would be bestowed upon
junior counsel if he were able to receive his clients as a medical
practitioner receives his patients.
In France, there is the distinction between the _avocat_ (or
barrister) and the _avoué_ (or solicitor), and yet there appears to
be no hindrance upon the freedom of the _avocat_ in respect of an
intermediary. In America, the counsellor-at-law, or “attorney-at-law,”
as he is called in Pennsylvania, unites in his legal qualification
the right to practise as a solicitor or as a barrister or as both. As
a matter of fact, an American law office generally contains several
counsellors-at-law, who divide the court and office work up between
them. In point of right, however, the counsellor-at-law is perfectly
justified in carrying on the joint profession of a barrister and a
solicitor. This system is not recommended here, though it seems to
work well in America. All--and it may appear a great deal to some
people--which one ventures to recommend is the freeing of counsel
from the disability of compelling a solicitor’s intervention. That
is to say, no change in the existing system is recommended beyond
sanctioning the more direct form of access. A solicitor could intervene
in the ordinary way between a client and counsel, but counsel should
be at liberty to advise, or to advocate the cause, of any client who
chose to present himself without the usual intermediary. Advance of
the times must almost certainly produce some such system. There can
be little doubt that the profession of an advocate would be much
facilitated by the change. Indeed, the only possible sufferers would be
the solicitors, whose profession offers sufficient variety of work to
enable them to sacrifice the costs arising from the invariable custom
of intervention. In a great number, perhaps, truly, in the majority, of
cases, the present custom might continue to apply; in some, in many,
confessedly, clients and barristers would alike avail themselves of
the less circumscribed relations. If a member of the Bar is allowed
to take “a docker,” or defence direct from a prisoner in the dock, he
should certainly, it seems only just to infer, be allowed to admit a
client to his chambers, unaccompanied by a solicitor. The fee could
be collected by the clerk on the same cash principle which applies
to the transactions of the greatest medical experts, or specialists.
Certainly, the suggestion has something to recommend it, particularly
in these days of practical thought.
If a barrister of the Court of Appeal of Paris, or a member of the New
York Bar, can be approached direct, there is reason to suppose that
the system suggested is neither gross nor one calculated to destroy
prestige.
The question of counsel’s fees is not without some interest to
laymen, as well as to those more intimately concerned. The great
incomes derived from practices at the Bar are largely imaginative. The
forty thousand a year of a certain very well-known practitioner was
probably never more than approximated by half that sum in reality. The
sixty thousand odd attributed to a leader of the Parliamentary Bar
in his ordinary years was also, in all probability, half fictitious.
Large fees, of course, have been known in every age. Under the Roman
Republic, M. Licinius Crassus made a fortune from advocacy, which
fortune, it is said, exceeded three millions sterling. He carried the
reputation, however, of exacting exorbitant fees from his clients. A
similar charge was made against P. Clodius and C. Curio. Cicero, too,
though he boasted of his respect for the Cincian law, which prohibited
the remuneration of advocates, was not without suspicion of mercenary
conduct. Lord Mackenzie, who touches upon the subject, believes that
he extracted a million sesterces (about £8,000) from Publius Sylla,
who was under impeachment. The money was cloaked, according to the
custom, as a loan, but there is no doubt it was paid in exchange for
Cicero’s services as an advocate. Another Roman method of rewarding
members of the Bar was by legacies left them by their clients in their
wills. These bequests were looked upon with some favour. Cicero boasted
that he had received in this form sums amounting to upwards of twenty
millions of sesterces, which was the equivalent of about £166,666.
It is interesting to note that there was a division of lawyers into a
first order, of _advocati_, and into a second order, of _formularii_,
under the Roman Empire.
Members of the English Bar, it may be pointed out, cannot sue for fees,
“although there be an express contract to pay them.”
“In France, ancient laws and decisions, as well as the opinions of
the doctors, allowed an action to advocates to recover their fees; but
according to the later jurisprudence of the Parliament of Paris, and
the actual discipline of the Bar now in force, no advocate was or is
permitted to institute such an action.” (Lord Mackenzie.)
So far as large fees are concerned, the £8,000 paid to Sir Thomas Wilde
(afterwards Lord Truro) in the case of Small _v._ Attwood is something
of a record, though it is eclipsed by the 300,000 francs received by
Gerbier, the eighteenth-century French advocate, from a French colonial
governor.
“In the sixteenth century, and for some generations previous, it
was customary for clients to provide food and drink for their counsel.
Here is an extract from a bill of costs made in the reign of Edward
IV.--‘For a breakfast at Westminster spent on our counsel, 1_s._ 6_d._;
for boat hire in and out and a breakfast for two days, 1_s._ 6_d._’
Another item, from the parish books of St. Margaret’s, Westminster,
runs thus--Also paid to Roger Fylpott, learned in the law, for his
counsel given 3_s._ 8_d._, with 4_d._ for his dinner.... When Sir
Thomas Moore lived in Bucklersbury, he ‘gained, without grief, not so
little as 400_l._ by the year. Considering the relative profits of the
Bar, and the value of money,’ says Lord Campbell, ‘this income probably
indicated as high a station as 10,000_l._ a year at the present day.’
In the reign of James I., the nominal salaries paid to the judges and
Crown lawyers were extremely low; their real incomes were derived from
certain fees which had to be paid into Court before any suitor could
obtain a hearing. ‘Francis Bacon,’ says Mr. Hepworth Dixon, ‘valued
his place as Attorney-General at 6,000_l._ a year, of which the King
paid him only 81_l._ 6_s._ 8_d._.’ Mr. Dixon goes on to mention several
similar instances, adding, ‘Yet each of these great lawyers had given
up a lucrative practice at the Bar. After their promotion to the Bench
they lived in good houses, kept princely state, gave dinners and
masques, made presents to the King, accumulated goods and lands.’ Sir
Edward Coke had made a still larger income as Attorney-General, the
fees from his private and official practice amounting to 7,000_l._ in a
single year.... We confess ourselves unable to reconcile such figures
as these with Lord Campbell’s statement about Sir Thomas Moore. Either
within a hundred years the value of money had enormously declined,
or Coke was making an income far exceeding anything attainable at
the present day. In his survey of the state of England in 1685, Lord
Macaulay says:--‘A thousand a year was thought a large income for a
barrister; 2,000_l._ a year was hardly to be made in the Court of
King’s Bench, except by Crown lawyers.’ Mr. Jeaffreson (in his _Book
about Lawyers_) impugns the accuracy of this statement, holding that
the former part of it is based on a passage in _Pepys’s Diary_. As long
ago as 1668, the Admiralty was a favourite target for Parliamentary
orators to shoot at, and Mr. Pepys, after priming himself with good
liquor, made such a spirited speech in behalf of his department that
his friends complimented him hugely, assuring him that if he would but
put on a gown and plead at the Chancery Bar, he could not get less than
1,000_l._ a year. We see nothing to complain of in this portion of Lord
Macaulay’s statement, especially as Mr. Jeaffreson himself adds in a
note, ‘Among advocates in Charles II’s reign, a professional income of
a thousand a year signified a practice and popularity that placed a
barrister in the second rank of the unquestionably successful followers
of the law. Somers was thought a fortunate and rising counsellor when
he enjoyed Lord Chancellor Nottingham’s favour, and made 700_l._ a
year.’ But the credit of the second part of Lord Macaulay’s statement
is certainly shaken by an examination of the fee-book of Sir Francis
Winnington, who was Solicitor-General to Charles II. In 1673 he
received 3,371_l._; in 1674, 3,560_l._; and in 1675--the first year of
his tenure of the Solicitor-General’s office--4,066_l._, of which only
429_l._ were office fees. Lord Keeper North made 7,000_l._ a year as
Attorney-General, and his brother, Roger, gives an amusing description
of his mode of bestowing the fees in three skull-caps--one for the
gold, one for crowns and half-crowns, and one for small money. In those
golden days the barrister did not open his mouth until his fingers had
closed on his client’s money, and credit was unknown in transactions
between counsel and attorney. A good deal of base money used, however,
to be taken on these occasions, and Bishop Burnet gravely praises Sir
Matthew Hale for his justice and goodness in not putting this flash
coin again into circulation. The worthy Judge’s virtue was emphatically
its own reward. He had gathered together a vast heap of this spurious
coin, when some thieves broke into his house, and contentedly carried
it off, believing that they were helping themselves to his hoarded
treasure. The practice of the Bar does not appear to have become more
lucrative in the reign of George II. than it was many years earlier.
During the last year of his tenure of the Solicitor-Generalship,
Charles Yorke earned 7,322_l._ Lord Eldon’s fee-book shows a great
advance. In 1794, he received 11,592_l._; in 1795, 11,149_l._; in 1796,
12,140_l._ Previous to Erskine’s elevation to the Bench, he received on
an average twelve special retainers in the year, from which he gained
at least 3,600_l._ Elsewhere (_Times Review_) we read of Erskine--‘It
is four and a half years since he was called and in that time he has
cleared 8,000_l._ or 9,000_l._, besides paying his debts, obtaining a
silk gown, and a business of at least 3,000_l._ a year.’”[35]
In bringing this chapter to a close, it seems only fitting again to
lay stress on the desirability of entitling a barrister to receive a
client without the obligatory intervention of a third person, namely,
a solicitor. An absurd anomaly, _the legal assumption that every man
knows, or is expected to know, the law_, would perhaps be somewhat
nearer fulfilment, if counsel were less unapproachable than they are
to-day.
[Mr. Chester wishes it to be clearly understood that his suggestion
of a direct approach to counsel is only put forward because he has
witnessed the success of the system in other countries--otherwise, he
would not venture to mention such an innovation. In this chapter, at
any rate, he desires to assume the _rôle_ of commentator rather than
that of an advocate.]
FOOTNOTES
[34] In the current press for March 20, 1911, there is the following
report, under the heading, “_Solicitors Struck off the Rolls_: King’s
Bench Divisional Court.--Justices Ridley, Darling and Channell.... Upon
the application of Mr. T. Payne, appearing for the Law Society, the
following solicitors were ordered to be struck off the Rolls:--Patrick
Burke, formerly of Bridge Street, Manchester; Francis Ernest Swann,
formerly of Fleet Street; and John Milton Kerr, formerly of Halifax....
It appeared that the statutory committee found Patrick Burke guilty of
misappropriation of clients’ money, including £1,000 out of £2,250,
handed to him by the Mother Superior of the Order of St. Joseph,
for the purpose of purchasing a house at Stafford for the sisters
upon their expulsion from France. The papers were sent to the Public
Prosecutor and a warrant was issued, but the solicitor could not be
found.... Francis Ernest Swann, on October 11, 1910, was sentenced
to five years’ penal servitude at the Central Criminal Court for the
fraudulent conversion of £1,700.... John Milton Kerr was convicted at
Leeds in November last of the fraudulent conversion of £1,976, and
sentenced to three years’ penal servitude.”
[35] _Legal Anecdotes_, edited by John Timbs.
CHAPTER XII
THE MORALITY BILL, ACCESSION AND CORONATION DECLARATIONS AND OATHS
I. THE MORALITY BILL
The Morality Bill, so designated because of its peculiar provisions,
contains some instructive reading. The most questionable provision in
the Bill is formed by a portion of sub-section (1), section 9. “If any
woman, who is a prostitute or a reputed prostitute, shall permit any
boy to have connection with her ... such woman shall be guilty of a
misdemeanour, and shall be liable upon conviction on indictment to be
imprisoned, with or without hard labour, for any term not exceeding two
years.” “Boy” for the purposes of the Bill means a male under the age
of nineteen years.
Such a provision could scarcely be conceived in any country other than
England or America. No doubt it is well-meant, but in the complex state
of society in towns, it is almost incapable of being put into practical
effect.
That part of subsection (1), section 19, which makes it punishable
for any person to favour or encourage the connection between a boy and
a prostitute, is quite above reproach. The Bill in its other provisions
is largely protective and meritorious. Its punitive side is also
justified: indeed, it is scarcely harsh enough towards the man who
lives on the immoral earnings of a woman: “Any person who knowingly
lives, either wholly or in part, upon the immoral earnings of a woman
(subsection (1), section 13), shall be guilty of a misdemeanour, and
shall be liable, if a male, to be imprisoned upon summary conviction
for any term not exceeding six months, with or without hard labour,
or upon conviction on indictment for any term not exceeding twelve
months, with or without hard labour.... Where a person is convicted
on indictment of an offence under this section, it shall be lawful
for the Court to direct that he be subject to the supervision of the
police under section eight of the Prevention of Crimes Act, 1871,
notwithstanding that he has not been previously convicted of crime.”
The summary conviction limit of six months is inadequate: so, likewise,
is the limit of twelve months fixed for the punishment on conviction on
indictment. The offence is one of the worst under the criminal law from
the human standpoint; it is not only _mala quia prohibita_ but _mala
per se_ in the public mind. The scoundrels who traffic in prostitution
well deserve a greater punishment than the Bill suggests. “Prostitutes”
in this sense does not mean the street women of the West End so much
as those girls who are lured from the Continent, on a promise of high
wages in London milliners’ shops, and then forced for a time at least
by the women who import them to frequent certain so-called theatrical
resorts. Many of these girls are not naturally vicious; they are
merely the prey of the older women who work in conjunction with male
supporters, some of whom take as much as thirty or forty pounds a week
from the earnings of one of the victims. The men in question advise on
and direct matters through the older women: as a matter of business,
when the necessity arises, they also supply persons to perform illegal
operations. To give an illustration of the _modus operandi_, generally,
it will be necessary to narrate a passage from the history of one
of these atrocious enterprises. _A_, a Paris shop-girl, aged 19,
good-looking and well-formed, was induced to come to this country by
_B_, a South American harlot established in London. The inducement was
a very good wage at a West End shop where the English language could
easily be picked up, according to report. _A_, a perfectly respectable
girl, agreed to come to London with _B_, and shortly afterwards she
found herself in a flat in Oxford Street (the rent of which was about
£7 a week). She was kept at the flat until some evening dresses had
been obtained, and then she was taken to a certain variety theatre
by _B_. The girl could speak no English and her character was not
self-assertive or strong. She knew nothing about French consuls or the
English police, and, then, too, her ordinary wearing apparel had been
taken from her by _B_. She, therefore, found herself on this first
occasion, in the brightly-lighted promenade of a “music hall,” with
many well-dressed men and women in her immediate vicinity. _B_ was
near at hand to keep a watchful eye upon her. A patron of the place,
one who was fluent with his French, soon made off with her to the
flat in Oxford Street, to which he had been directed by _B_. (_A_ was
herself incapable of supplying the address to the cabman). The girl
then explained that she had had her ordinary clothes taken from her
by _B_, that _B_ kept a man in the background, and that she, _A_, was
entirely helpless. At a subsequent meeting, _A_ explained that _B_ took
possession of about forty pounds a week, from her, and that the pretext
was that it was being banked! The only clothes to which she, _A_, had
access were evening gowns; she was kept without money, too, under
constant surveillance, amid conditions which she did not like. The
final scene was enacted a few months later, when the person, to whom
_A_ had confided her story, went to the flat and found her missing. Her
place had been filled by a newly-arrived _girl of fifteen_, procured
by the same process from a Paris shop. On persistent enquiry, _A_ was
found in another room suffering from the consequences of an illegal
operation, which had been forced upon her by the joint efforts of _B_
and the male director of affairs.
A maximum penalty of twelve months’ hard labour for a scoundrel of the
stamp of _B’s_ “lover” is most disproportionate to the offence. Of
course, such a man would be liable to a greater penalty, if a girl of
fifteen years of age were brought into the case. But on the other facts
alone, the law should be less merciful.
Section 10, of the Morality Bill, is worth transcribing in full.
“(1) If any male person shall have connection with a woman who is to
his knowledge his granddaughter, sister, daughter, niece, or mother,
he shall be guilty of felony, and shall be liable upon conviction on
indictment to be imprisoned, with or without hard labour, for any term
not exceeding two years, or be kept in penal servitude for any term not
less than three years and not exceeding seven years: Provided that if
it is alleged in the indictment and proved that the girl was, at the
time of the commission of the offence, under the age of sixteen years,
the maximum term of penal servitude which the court may inflict shall
be ten years.
“(2) If any male person shall attempt to have connection with a woman
who is to his knowledge his granddaughter, sister, niece, or mother, he
shall be guilty of a misdemeanour, and shall be liable upon conviction
on indictment to be imprisoned, with or without hard labour, for any
term not exceeding two years.
“(3) If any woman, not being a girl, shall permit her grandfather,
father, brother, uncle, or son to have connection with her (knowing
him to be her grandfather, father, brother, uncle, or son, as the case
may be) she shall be guilty of a felony, and shall be liable upon
conviction on indictment to be imprisoned, with or without hard labour,
for any term not exceeding two years, or to be kept in penal servitude
for any term not less than three years, and not exceeding seven years.”
Where the word “mother” is used in the first part of subsection
(1), at sight it appears careless to put, nearer the end of the
same subsection, “provided that if it is alleged in the indictment
and proved that _the girl was, at the time of the commission of the
offence, under the age of sixteen years,” etc._
The “Memorandum” preceding the Morality Bill contains an epitome of the
whole conception. “The general object of this Bill is to substitute
for the Criminal Law Amendment Act, 1885, the Vagrancy Act, 1898, the
Punishment of Incest Act, 1908, the Obscene Publications Act, 1857,
the Indecent Advertisements Act, 1889, and certain other enactments,
a comprehensive measure which shall materially strengthen the law
relating to offences against morality and decency.... The chief
proposals of the Bill are:--
“1. To raise ‘the age of consent’ to nineteen, the full offence to be
felony, and the maximum punishment to be--(_a_) if the girl is any age
under sixteen, penal servitude for ten years; (_b_) if the girl is over
sixteen, penal servitude for five years.
“2. To protect all feeble-minded women and girls, the full offence to
be felony, the attempt a misdemeanour, and the maximum punishment to be
for the felony penal servitude for five years, and for the misdemeanour
imprisonment for two years.
“3. To make it felony to obtain, and a misdemeanour to attempt to
obtain, consent by any inducement or threat in connection with
employment, the maximum punishment to be for the felony penal servitude
for five years, and for the misdemeanour imprisonment for two years.
“4. To make it a misdemeanour for any woman or girl of abandoned
character to permit a boy under nineteen years of age to have immoral
relations with her, or for any person to favour or encourage such
relations, the maximum punishment to be imprisonment for two years.
“5. To make the full offences specified in section two, which relates
to procuration, of the Criminal Law Amendment Act, 1885, felonies, for
which the maximum punishment is to be penal servitude for five or ten
years, according to the age of the girl; and to extend the protection
against procuration, and attempted procuration, now enjoyed by girls of
good character under the age of twenty-one--(_a_) to all women of good
character; (_b_) to all feeble-minded women and girls, whatever their
character; (_c_) to all girls under the age of nineteen, whatever their
character.
“6. To make the offences specified in subsections (1) and (2) of
section three of the Criminal Law Amendment Act, 1885 (_viz._,
procuration by threats or false pretences, etc.), felonies for which
the maximum punishment is to be penal servitude for five or ten years,
according to the age of the girl; and to make an attempt to procure by
false pretences a misdemeanour for which the maximum punishment is to
be imprisonment for two years.
“7. To make the offence specified in subsection (3) of section three
of the Criminal Law Amendment Act, 1885 (_viz._, the administration of
drugs for an immoral purpose) felony for which the maximum punishment
is to be penal servitude for ten years.
“8. To make the offences specified in sections six, seven and eight
of the Criminal Law Amendment Act, 1885 (_viz._, the offences of
permitting defilement on premises, of abduction for an immoral purpose,
and the unlawful detention for such purpose) felonies for which the
maximum punishment is to be penal servitude for five or ten years,
according to the age of the girl.
“9. To make an offence under section eleven of the Criminal Law
Amendment Act, 1885--(_a_) when committed with a boy under the age of
sixteen years, felony for which the maximum punishment is to be penal
servitude for ten years; (_b_) when committed with a person over that
age, felony punishable with penal servitude for five years.
“10. To make the keeping of premises for immoral purposes a
misdemeanour punishable summarily with a fine of 50_l._ and
imprisonment for six months, or upon conviction on indictment with a
fine of 200_l._ and imprisonment for two years.
“11. To make further provision for the suppression of indecent,
immoral, and grossly offensive literature, pictures, advertisements,
etc., the offence to be a misdemeanour punishable upon summary
conviction with a fine of 50_l._ and imprisonment for six months, or
upon conviction on indictment with a fine of 100_l._ and imprisonment
for twelve months. Further powers are given to the Postmaster-General.
“12. To make it a misdemeanour punishable upon summary conviction
with imprisonment for six months, or upon conviction on indictment
with imprisonment for twelve months, for any male person knowingly to
live upon the immoral earnings of a woman or girl; and to make it a
misdemeanour punishable upon summary conviction with imprisonment for
six months for any woman to do so. (The expression ‘immoral earnings’
is defined to mean the earnings of prostitution or of habitual
immorality.)
“13. To make it a misdemeanour punishable summarily with imprisonment
for six months, or upon conviction on indictment with imprisonment for
twelve months, for a male person to solicit persistently for an immoral
purpose in a street or public place.
“14. To make ordinary cases of soliciting punishable summarily with a
fine of 10_l._, or with imprisonment for two months without the option
of a fine, or upon a second or subsequent conviction with a fine of
30_l._, or with imprisonment for six months without the option of a
fine.
“15. To extend to an amended form the provisions of the Children’s
Act, 1908, relating to persons having the custody of girls, and either
causing their seduction or not exercising due care, to the cases of
girls between the ages of sixteen and nineteen years.
“16. To strengthen the provisions of the Children’s Act, 1908, relating
to the punishment of parents and others who allow children and young
persons to reside in or frequent premises kept for immoral purposes;
and to extend those provisions to the protection of persons between the
ages of sixteen and nineteen.
“17. To enable a person who is convicted on indictment of--(_a_)
keeping premises for immoral purposes; or (_b_) living on a woman’s
immoral earnings, being a male; or (_c_) persistently soliciting, being
a male; or (_d_) selling indecent literature, etc., to be placed under
police supervision, notwithstanding that such person has not been
previously convicted of crime.
“18. To require courts to recommend for expulsion aliens over the age
of nineteen who are convicted of certain offences.
“19. To restrict the punishment for rape to penal servitude for not
more than ten years, except under certain aggravated circumstances,
when the maximum term is to be fifteen years.
“20. To restrict the punishment for offences under sections fifty-eight
and sixty-one of the Offences against the Person Act, 1861, to penal
servitude for not more than ten years, and for offences under section
sixty-two of that Act to penal servitude for not more than seven years.
“21. To re-enact the Punishment of Incest Act, 1908; to extend its
range; and to make such other amendments as are required to render its
provisions consistent with the above proposals, the full offence to be
felony.
“22. To restrict the punishment of young offenders for any of the above
offences (including rape, incest, etc.) by providing--(_a_) that no
person under the age of twenty-one shall be liable to a longer term of
penal servitude than seven years, unless he is guilty of rape under
certain aggravated circumstances, in which case he is to be liable to
penal servitude for ten years; and (_b_) that no person under the age
of eighteen shall be liable to penal servitude.
“23. To render an indecent assault upon a person under the age of
nineteen years, cognizable summarily with the consent of the accused,
but to increase the maximum term of imprisonment which a court of
summary jurisdiction may, under those circumstances, inflict, to six
months. (_Cf._ a similar provision in the Children’s Act, 1908.)
“24. To enable the court to be cleared (representatives of the press
being allowed to remain) during proceedings relating to offences
against morality or decency, and to enable the worst of such cases to
be tried _in camera_.
“25. To repeal--(_a_) The Criminal Law Amendment Act, 1885; (_b_) The
Vagrancy Act, 1898; (_c_) The Punishment of Incest Act, 1908; (_d_)
Sections sixteen, seventeen, eighteen, one hundred and twenty-eight
(2), of the Children Act, 1908, and the Second Schedule of that
Act; (_e_) The Obscene Publications Act, 1857; (_f_) The Indecent
Advertisements Act, 1889; (_g_) Other enactments.”
The comprehensive nature of the Morality Bill can scarcely be doubted
after a perusal of the foregoing _Memorandum_. There is no question
whatever, the bulk of the provisions are good. But the penal offence
constituted by a prostitute’s intercourse with a boy under nineteen
seems somewhat far-fetched. The intention may be good, though it would
look peculiar as a section of a statute. There is no need to comment
further on the subject here.
Prior to going through the Bill, the writer had intended suggesting
the insertion in it of the following provision: “In any case where it
has been proved that a girl was induced to sexual intercourse on the
promise or understanding that a theatrical or other engagement was
to be the result of such intercourse, or where a theatrical or other
engagement has already been obtained and is to be continued only on
submission to an act of sexual intercourse with a manager, proprietor,
or other person in authority, then such person shall be guilty of a
misdemeanour punishable with imprisonment with or without hard labour
for any term not exceeding twelve months.” On examining the contents of
the Bill, he, however, found the contingency provided for in section 8.
“8.--(1) If any male person shall obtain, or if any person of either
sex shall aid or abet any male person in obtaining, connection with any
woman by any inducement or threat in connection with her employment
in any capacity, or with any attempt on her part to obtain employment
in any capacity, such person shall be guilty of felony, and shall
be liable upon conviction on indictment to be imprisoned, with or
without hard labour, for any term not exceeding two years, or to be
kept in penal servitude for any term not less than three years and not
exceeding five years. (2) If any male person shall attempt to obtain,
or if any person of either sex shall aid or abet any male person in
attempting to obtain, connection with any woman by any inducement or
threat in connection with her employment in any capacity, or with any
attempt on her part to obtain employment in any capacity, such person
shall be guilty of a misdemeanour, and shall be liable upon conviction
on indictment to be imprisoned, with or without hard labour, for any
term not exceeding two years.”
There are two classes of enterprise which are peculiarly associated
with what may be termed submissive immorality for the purpose of
legitimate employment. In the one class the victim’s downfall finds
its beginning in connection with theatrical aspirations, whereas in
the other class it is indirectly brought about by the demands of
fashion. There is reason to believe that a well-formed, good-looking
girl, who is anxious to get on the stage will often only accomplish her
desire by first submitting to sexual intercourse with her prospective
employer. This is not always so, naturally, but it is a general custom
in some quarters. In many, if not in most cases, submission means the
seduction of a previously virtuous girl. The condition precedent to
a theatrical engagement, more particularly on the “musical comedy”
stage, is, therefore, of such a character that the harshest measures
are needed to put it down. The whole process is iniquitous. On the one
hand, there is an eager, inexperienced young woman, foolish enough
to want to go on the stage, and on the other, there is a calculating
scoundrel who regards her as his certain prey. The second important
variation to the offence of carnally knowing a woman, through the
influence of her employment, frequently arises in West End milliners’
shops. The employment by male _costumiers_--that is to say, at the
most fashionable shops--of attractive young women, who, for their
figures and appearance, are chosen as models to display Paris hats and
costumes, gives rise to a whole series of iniquitous conditions which
would shame the most indecent novel. Models of the sort referred to are
generally subjected to much the same treatment as the “musical comedy”
aspirants, but there is this difference--that the former usually obtain
the engagement before the “cloven hoof” of their employer begins to
show itself.
The searchlight of vigilance would consume itself were it applied to
half the subjects which pass through one’s mind as suitable for attack.
That is to say, in connection with submissive immorality for the
purpose of legitimate employment.
II. ACCESSION AND CORONATION DECLARATIONS AND OATHS
This little work would, perhaps, be incomplete without some mention of
the Accession Declarations and Coronation Oaths.
It is first proposed to incorporate here the “Declarations of Heads of
States” which declarations were collected and ordered to be printed by
the House of Commons in May, 1901.
GREAT BRITAIN AND IRELAND.
I. _Declaration made by the King, on his Accession, in the House of
Lords, pursuant to section 1 of the Bill of Rights 1 W. & M. sess. 2,
c. 2_.
I, EDWARD, do solemnly and sincerely, in the presence of God,
profess, testify, and declare, that I do believe that in the
Sacrament of the Lord’s Supper there is not any transubstantiation of
the elements of bread and wine into the body and blood of Christ at
or after the consecration thereof by any person whatsoever; and that
the invocation or adoration of the Virgin Mary or any other Saint,
and the sacrifice of the Mass, as they are now used in the Church
of Rome are superstitious and idolatrous, and I do solemnly, in the
presence of God, profess, testify, and declare, that I do make this
declaration and every part thereof in the plain and ordinary sense
of the words read unto me as they are commonly understood by English
Protestants without any evasion, equivocation, or mental reservation
whatsoever, and without any dispensation already granted me for this
purpose by the Pope or any other authority or person whatsoever, or
without any hope of such dispensation from any person or authority
whatsoever, or without thinking that I am or can be acquitted before
God or man, or absolved of this declaration or any part thereof
although the Pope or any other person or persons or power whatsoever
should dispense with or annul the same, or declare that it was null
and void from the beginning.
II. _Oath with regard to the Church of Scotland, taken by the King at
his first Council, on 23rd January, 1901._