Imprisonment for debt is nearly as old as the hills--under the Roman

_régime_, as will be seen, it literally flourished--but it is not

wanted in this country at this time and by a fictitious process, too,

which is regarded with disfavour by many of the judges empowered to

employ it.

FOOTNOTES

[20] Lord Mackenzie.

[21] _Oswald on Contempt, Committal and Attachment._

CHAPTER VI

THE NEED FOR THE RIGHT OF PROPERTY IN SURNAMES

A very anomalous side of the law is to be found in connection with

the use of surnames: their variation, their complete change, etc. John

Smith may freely call himself John Montmorency or John Plantagenet,

or any other name in keeping with his fancy. He may even go a step

further, and call himself Baron Montmorency or Viscount, or Count, or

Marquis or Duke, or whatever else he likes. So long as the name and

title do not cause persons to give him credit which they would not

give him as John Smith, he is comparatively immune from the meshes of

the law. The whole question therefore evolves itself into a simple

issue--_i.e._, is the assumption of the title or surname with a view to

imposing on people, and does it in fact so impose upon them that they

are led to part with goods or money on the strength of the success of

the imposition?[22]

Many Jews and other aliens on becoming established in this country

drop their patronymics, which may end with a “stein” a “berg” or a

“ski” and call themselves instead, “Gordon,” or “Howard” or something

else equally reassuring. That such a loose state of affairs should be

permitted is an indirect incitement to fraud. Admittedly, “Cohen” or

“Solomon” is not, perhaps, an incentive, _primâ facie_, to business

relations, whereas “Harris” or “Langton” may be.

It is utterly iniquitous the way the family names of British peers

have been seized upon by the sons of Israel. One finds some of the

greatest names in the history of the country applied to the offspring

of Whitechapel. Some legal check is needed to prevent this, even where

no direct intention exists to commit a punishable fraud by means of the

fiction. It is not suggested that those Jews who have reached power in

England use their adopted appellations to carry on swindles. But it is

improper that they should prosper under the great name of some English

or Scottish ducal house, when they have never perhaps even so much

as lent money to its members in the junior line! Several peculiarly

flagrant instances of the kind suggest themselves to the mind. Great

dignity has sometimes been bestowed on the scions of a Hebrew house

whose adopted name has clashed unpleasantly with the noble name of

an historic family. Why a name like “Sowinski” should be replaced by

“Cavendish” one fails to see, particularly as a name carries with it

definable or indefinable, conscious or unconscious, associations, which

weigh.[23]

The offspring of the original “Sowinski” becomes “Charles,” or

“Edward,” or “George”--“George Cavendish.” Obviously, such a person

has reached a financial status far above interest in trivial fraud,

though his name is a constant fraud of sorts on some one, particularly

if he remains only a name--_invisible_! To descend to the lower

branches of struggle for gain by imposture, we find “Claude Churchill”

lending money, practically without interest, “Edwin Graham” giving

bank notes away on mere notes of hand, and “Hubert Douglas” most eager

to cash post-dated cheques, literally for nothing! It is incredible!

How a “Lazarus” can become a “Scott,” an “Aarons” an “Ogilvie,” and

a “Niemann” or a “Katz” a “Murray,” is far beyond reasonable process

of deduction! It is a gross anomaly of the law that it should be

tolerated. A High Court judge recently drew a limited parallel--the

assumption of noble names by money-lenders. “What’s in a name?” may

be asked by the illiterate or semi-illiterate man, and yet he is

as promptly influenced by it as persons to whom a name admittedly

suggests something tangible. In the case of “John Smith,” we have

a name which is not distinctive, which, indeed, must be confusing

and burdensome to its possessor. He may have a much larger banking

account than an individual of distinguished name and lineage, and,

if so, he is perfectly justified in using it to change his name to

“Boggs,” or “Hoggs,” or “Noggs” or whatever other name exists in his

maternal line. However lowly his origin, he should be compelled to

choose a name associated with his parentage. He should not be allowed

the option of assuming a high-sounding name to which he can lay no

claim. His choice should be limited to the names of his ascendants.

In this way, there would be some semblance of actual justification

for discarding a commonplace patronymic. The candidate for change of

name could effect his purpose by deed poll, an easy task involving

no proof of pedigree or gentle birth. Affidavit should, however, be

made that the name chosen, on the plan here suggested, was the name

of such and such an ascendant of the person making the change. This

would be an effort on the part of the law to reduce the system to order

and method. In the case of Russians, Poles, aliens of suggestive and

hideous surname, whatever change of name allowed to them, such change

should conform with their foreign origin. Provision for the infliction

of penalties for disobedience in this connection would help matters in

the right direction. The whole question may seem trivial, but from the

ramifications which spread out from the use of an _alias_ or fictitious

surname, much deception, or fraud, or improper profit almost amounting

to fraud, frequently, if not generally, results. This is stating the

case in a very mild way.

Establishing the identity of an alien in this country should also

be made easier by compelling every such person to produce documentary

evidence of his (or her) identity on landing, and to make such person

subject to interrogation or examination on the point at any subsequent

time. This is a side-issue; still, it is linked to the main question

here raised, namely, the chaotic laxity permitted, or, at any rate,

not prevented, with regard to the change of a person’s name. The

method of the deed poll, as at present applied, though preferable

to the impromptu nomenclature adopted by the criminal classes, is

certainly not above reproach. It allows too much license in the

choice of a name. Change of surname should, as already pointed out,

be restricted to cases where the claim to the new name is at least

colourable, _i.e._, permissible only where the name desired is the name

of an ascendant.[24] If some of these suggestions were carried out,

there would be no more mad hunts for practically anonymous criminals

like “Peter the Painter” and “Fritz,” the suspected murderers in the

notorious Hounsditch fiasco. The wonder is that no one has apparently

yet seized upon the feeble system or absence of system in checking the

rightful names of the inhabitants of these islands. Legislation for

the punishment of persons making an improper use of surnames would be

distinctly useful. There would be fewer Polish “Harrises” and Russian

“Montagues” or, indeed, “Montagus” (less the “e,” for in some cases

this further audacity has been exhibited), in England than there are

to-day. Even the descendants of these august impostors would tremble in

their boots! “Solomon” or “Aaronstein” or “Samuel” would also become

their appearance better in many cases! These remarks, though they

obviously refer to Jews, are not intended to offend respectable Jews

who courageously adhere to the ugly names of their ancestors. The Jew

who says he is a Jew and passes under a name properly associated with

the Jewish race calls for no rebuke, nor, indeed, for anything, very

often, except genuine admiration. It is the impostor, great and little,

criminal or merely falsely ambitious, who attracts hostile attention,

with some substantial justification, be it confessed.

With regard to the small fry of the improper hyphen, there is nothing

to be said. Thousands of persons use hyphens who, if they had any sense

of proportion or self-respect, would hastily discard such a laughably

inconsistent sham. Unless a hyphen expresses the legal joining of

two surnames, thus bringing together the pedigrees of two houses, it

conveys nothing but _bourgeois_ affectation and impudence. It is a

feeble fraud at best, scarcely worth condemning. Different causes bring

about the legal use of the hyphen. Sometimes, a rich father-in-law

without heirs male directs by his will that his daughter’s husband

shall, by Royal License, assume the additional surname, whatever it may

be, which becomes extinct at his (the father-in-law’s) death, before

or after his (the son-in-law’s) own name. In this way the hyphen comes

into being, and the name which would have perished is duly kept alive.

At other times, the additional surname of an ancestor, where that

ancestor bore a distinguished name, in the maternal line, is revived

by process of law on the voluntary initiative of the person desirous

of possessing the name. Thus, a person representing in his blood an

historic family through, for example, his father’s mother, may by Royal

License assume his grandmother’s maiden name, the more justifiably

if she was in the nature of an heiress or co-heiress of the house.

The name, of course, may be joined to the existing surname, before or

after, with a hyphen, or it may be taken alone in substitution for the

existing surname.

Reference has been made to the freedom with which a man may call

himself by any name, without legal formality, and to the equal freedom

with which an alien may discard his own name and by deed poll assume

the honoured name of a great English house. (Alas, the Royal Licence

has been used in at least one glaring instance, too!) It has also been

made obvious that such practices should be checked by definite legal

means.[25]

The countries where conscription is customary are well protected

against change of name abuses. Conscription would solve the difficulty

here; but there are ways and means of putting down a most iniquitous

practice, a criminal practice in its intent, more often than not, by

ordinary legislation. Actors and actresses could be exempted because

they do not appear to offend in the sense that the impostors condemned

in the foregoing remarks offend.

It so happens that a further judicial allusion, as to the wrongful

assumption of great names, has been made, and duly reported in the

press. “As usual on Saturday,” says the report, “a number of short

cause actions, generally of a money-lending character, came on for

hearing, in Mr. Justice Darling’s Court in the King’s Bench Division

yesterday. One of them involved considerable argument upon a point of

law with reference to the passing, by a bank, of a cheque, which, it

was alleged, had been altered by the addition of the word, ‘Limited,’

to the plaintiff company.

“Counsel: ‘But at the time the cheque was drawn the plaintiffs were

not a limited company, and the title therefore was not their real

title.’

“‘Oh,’ commented Mr. Justice Darling, ‘such a thing does not surprise

me. I sit here on Saturday and hear all sorts of persons called

Fortescue, Plantagenet, Egerton, and so on, but those are never their

real names. You must not think that on Saturdays I expect people to

give their real names here, because I don’t!’

“His lordship was obviously referring to certain money-lenders whose

registered trade name, as distinct from the name of their parents, has

already given rise to judicial comment.

“The decision eventually went in favour of the defendants, who had paid

the cheque to one of the plaintiffs.

“There was considerable disturbance in the passage of the court when

another case was called, some litigants leaving the court, and others

hastening to the vacant seats.

“A witness named Fitz-Clarence was called in another case.

“‘Quite a Saturday name,’ observed counsel.

“‘All the Burkes and Debretts come here on Saturday,’ replied his

lordship, amid laughter.”[26]

Casual mention has been made of actors. Of those well-known, Henry

Irving was born Brodribb; Herbert Tree, Beerbohm; while George

Alexander’s surname was Samson. In no one of these instances was a

great family name improperly assumed, and it stands to the credit

of these theatrical leaders that such is in fact the case. There

are several persons on the English stage who are perfectly entitled

to describe themselves by well-known names. Lord Rosslyn, Lord

Yarmouth, Lord Dangan, Lady Constance Richardson, and the Hon. Helen

Douglas-Scott-Montagu, are among the number. Mr. Adolphus Yane-Tempest,

also distinguished in the theatrical world, is a Londonderry, while Mr.

Cosmo Gordon-Lennox, one of the Richmonds, is another actor entitled to

a distinguished name.

Constant use of a name is said to impart some element of right to

the name so used, but unless the deed poll is brought into operation,

one might reasonably suppose the name in question to be subject to

attack as an _alias_. Writers are given to the assumption of the

_nom de plume_. Beaumarchais, the hardy author of _Le Barbier de

Seville_ and _Le Mariage de Figaro_, was originally Caron by name,

but there is reason to believe that he became “De Beaumarchais”

by legal process. Some people even suggest that “Shakespeare” was

an _alias_ for Bacon! Many instances have occurred where writers,

distinguished and otherwise, have adorned their work with fictitious

names. Modern examples pass through one’s mind in dozens, but the

persons forming them have not gone to the extremity of using their

_noms de guerre_ in private life. Sometimes two people, prominent

in different spheres, bear the same combination of names, where the

names are not particularly commonplace. There is a novelist, of some

reputation in America, who like the present Home Secretary, is known as

Winston Churchill. As the Home Secretary’s “Winston” is derived from an

ancestress who married into the house of Marlborough, it is difficult,

without guidance, to see how the American novelist derived _his_

“Winston,” for “Winston” is said to be his name.

Juggling with names should be made a punishable deception. There are

exceptional circumstances, already roughly outlined, which warrant the

legitimate assumption of a name, justly celebrated, perhaps, where

it is represented in the blood.[27] Cases of the kind do not come at

all within the intention of these remarks, which are directed against

foolish or fraudulent persons who have no colourable right to the

names they assume. These offenders should be properly labelled by the

law, and not by the vagaries of aspiring imaginations or criminal

subterfuges.

FOOTNOTES

[22] “Application was made at Clerkenwell, to-day, for process against

a man calling himself ‘Viscount Mackenzie,’ for deserting his wife

and for obtaining credit by false pretences from his landlady, Mdme.

Gabrielle Suffolk, of Ampthill Square, St. Pancras.

“It was stated that the man had represented himself to be ‘Viscount

Mackenzie, of Mackenzie, in Ross-shire, Duke of St. Omars (a

surgeon-general in H.M. Army).’

“Mr. Bros heard the wife first.

“‘Viscountess Mackenzie,’ as the landlady called her, said she was

married to the man on January 7th, and he left her ‘four weeks to-day.’

“_Mr. Bros_: ‘Do you know his address?’--‘No, sir.’

“_Mr. Bros_: ‘Then I’m afraid I cannot help you.’

“The magistrate then called the landlady.

“She said she knew the man as ‘Viscount Mackenzie,’ and the wife as

‘the Duchess.’

“_Mr. Bros_: ‘You didn’t believe that, did you?’

“_The landlady_: ‘He said he was a surgeon-general in H.M. Army, and

would get his pension at the end of the month.’

“It was stated that the ‘Viscount’ had left his will behind him, and

the magistrate remarked that that did not help him.

“This will was produced in court the previous afternoon, when the wife

summoned the landlady for detaining her property, and stated that her

noble husband had induced her to part with all her money. The will gave

and bequeathed to ‘the Viscountess’ £6,000 a year for life and ‘all the

family plate.’

“On the sworn evidence of the landlady, a warrant was

granted.”--_Evening newspaper._

[23] “Noblemen, and their children, carry about with them, in their

very titles, a sufficient notification of their rank. Nay, their very

names (and this applies also to the children of many untitled houses)

are often, to the English ear, adequate exponents of high birth, or

descent. Sackville, Manners, Fitzroy, Paulet, Cavendish, and scores

of others, tell their own tale.... Such persons, therefore, find

everywhere a due sense of their claims already established, except

among those who are ignorant of the world, by virtue of their own

obscurity.”--De Quincey, _Confessions of an Opium-Eater_.

[24] Or where the change is to be effected by Royal License, when the

assumption of the name and arms might be prevented.

[25] A solicitor on the Rolls cannot change his name except by

the leave of the Master of the Rolls, who requires either a Royal

License or a deed poll enrolled plus advertisements. (A note by Mr.

Cozens-Hardy, the well-known barrister, who is, of course, the son of

the Master of the Rolls, the Right Hon. Sir Herbert Cozens-Hardy.)

[26] Sunday newspaper.

[27] Mr. Samuel Beach Chester is the only child of the eldest

(married) son, the late Captain Paul Townsend Jones, Jones’ Independent

Battery, Pennsylvania Artillery, of the late Rev. Samuel Beach Jones,

D.D., of Bridgeton, New Jersey, a trustee of Princeton University, and

a graduate of Princeton and Yale, who married the eldest child (all

daughters) of the Rev. John Chester, head of the Wethersfield branch of

the Chesters of Blaby in Leicestershire. The Chesters of Wethersfield

stood at the head of affairs in Connecticut in the 17th, 18th, and

(early part of the) 19th centuries. By order of the New York Supreme

Court, 1901, Mr. Chester assumed the maiden name of his grandmother,

Sarah Ralston Chester. Mr. William Chester represents the junior male

line and Mr. Beach Chester the senior female line, genealogically, at

the present time. The Chesters of Wethersfield, Connecticut, are not

related to any other family of the same name established in Connecticut

or elsewhere in the United States.

CHAPTER VII

LITERARY CENSORSHIP

There seems to be some need for the revision of the law applied

to literary productions. The subject is a peculiarly important one

to writers, printers and publishers, and, to a lesser extent, to

the public at large. When a publisher undertakes the publication

of a novel, for example, he involves himself in a liability for a

considerable sum for its production. The unknown writer may, by a

certain contributory process, bear a part of the burden borne by the

publisher. Only the writer with a name of one sort or another, or with

a certain circulation, can reach the stage which confers the advantage

of publication for reward. The publisher has his difficulties to

face in securing the services of a writer of this class, and, when

these difficulties have been overcome, he has the financial burden of

production to confront. This burden is in itself reasonably heavy,

with the result that he has to be most careful to avoid publishing any

matter, which may be condemned by the authorities as “indecent.” There

is something to be said as to what constitutes indecency, of course,

and this very uncertainty makes the publisher’s _métier_ the more

trying. It is more than trying; it is unfair.

The translated works of Marcel Prévost, a writer of genius, a member

of the Acadèmie Française, have been suppressed time and time again.

Théophile Gautier, Émile Zola, Guy de Maupassant, Gustave Flaubert,

and many other writers of the first water, have had the English

translations of their works suppressed. Admittedly, the freedom with

which sexual relations are dealt with by these writers has sometimes

been construed into indecency in this country. Certainly, the

translations, or many of them, are inferior in workmanship, and lend

themselves to condemnation by their very crudity. However this may be,

it is perfectly obvious that the legal method of dealing with indecent

or questionable literature is thoroughly inadequate, uncertain in its

effect, and needful of drastic improvement. That is to say, primarily,

a definite protection and security should be provided for the publisher

against loss arising out of the suppression of his publication. It may

be said, with partial propriety, that the best way for a publisher

to protect himself is not to publish _risqué_ works. But it must be

remembered that a publisher is not necessarily an expert on what

actually constitutes legal indecency, nor are his readers or advisers.

To be able to judge with some exactitude the decency or indecency of

sexual problem novels requires both legal and literary skill It is not

always so, naturally, though a certain number of works of literary

merit demand a high sense of discrimination in deciding their moral

limits. It is not precisely the immorality of a book which settles the

question: it is rather its treatment. There are many gross novels,

written by persons of inferior education. No doubt can exist as to

their indecency. But the publisher, perhaps, who undertakes their

publication, is merely careless in his methods. It is his duty,

indubitably, to take reasonable precaution; having failed to do so,

his position is a bad one. He may be prosecuted, committed for trial,

and imprisoned or fined, along with the printer. He also has to bear

the loss of production, a consideration in itself, as stated. His

“suppressed” novels become unsaleable at once.

A recent case at Bow Street Police Court was in a sense interesting

from the legal standpoint respecting indecent books. A prosecution was

started against the wholesale distributors of certain objectionable

novels, the work of an anonymous writer. The identity of the publisher

was not disclosed on the title pages of the books, nor did the

printer’s imprint appear. The distributors, therefore, stood _in loco

parentis_. They were mulcted in fines and costs to the extent of about

£400. The novels seized were ordered to be destroyed, as a matter of

course.

The technical basis for fines on such a scale was the absence of the

printer’s imprint--a legal necessity. The penalties attaching to an

infringement of the law on this subject make it worth the while of

every person responsible for the production of a book to preclude the

possibility of an oversight. Certainly, it may be assumed that the mind

of the magistrate was (in deciding the case above referred to) largely

influenced by the gross character of the books. Nevertheless, the

printer’s imprint should always appear.

By an anomaly of the law, a writer is not liable for the indecent

contents of his (in the recent case at Bow Street, “her”) books. That

is to say, so long as they do not constitute a libel upon someone. The

brunt of the trouble falls upon the printer and the publisher, more

particularly, in practice, upon the publisher.

One point which must strike the mind of any person interested in the

examination of books for publication is the very proper hostility of

the magistracy towards books, however excellent in literary quality,

which touch upon unnatural offences. In a novel of some merit--“_The

Hazard of the Die_”--a veiled suggestion, very veiled, it seemed,

of an unnatural association, ran through a portion of the book. It

was suppressed by the authorities, though it bore the imprint of a

respectable publisher.

Writers are at present hampered and restricted in the treatment of

ordinary sexual relations by many of the more important subscription

libraries. A writer has to consider his publisher, and the publisher

has to give some thought to his market. What has sometimes been

described as “the library ban” curtails the field of description to a

greater extent than the public authorities.

Whether or not all these bulwarks improve or protect the morals of the

kingdom is a moot question. To the ruthless mind, they seem to savour

of excess. Why any one body of persons, of no particular qualification,

should decide what is good and what is harmful for another superior

order to read is fantastic and even stupid to a degree. This

_quasi_-censorship may be beneficial in theoretically protecting the

young and innocent mind from coming into too early contact with pages

from life, but it is hardly considerate of those maturer readers

who may be anxious to be drawn from their own _ennuis_ by the light

treatment of other people’s. The suppression of all printed matter

relating to sexual difficulties, from divorce reports to novels and

plays, from classics to social memoirs, might tend perhaps to check an

increase of knowledge in the very young, though as long as we are human

beings and not metallic automata it may be presumed with some safety

that sexual relations will scarcely become extinct! Why the adolescent

mind should have to be rescued from a problematic contact with certain

printed matter, when, _per se_, proper upbringing should turn it

against depravity, one almost fails to see.

Of course, questions of morality and immorality have their degrees.

For instance, the most ardent supporters of freedom in connection with

literary works would not be able to give countenance to such gross

indecency as that exhibited in John Cleland’s notorious book. There are

similar publications, secretly distributed at the present day, which

would revolt the most worldly libertine.

Indeed, the dissemination of descriptive debauch should not stand

on a legal par with the publication and distribution of ordinarily

indecent books, such productions, for instance, as those named in the

recent Bow Street case. With regard to these latter publications, all

of which, in their original state, were examined and condemned by

the present writer, prior to the police prosecution, crudity of tone

and workmanship were as conspicuous as defective decency. The novel

translated from the French of Marcel Prévost was almost as careless

and rough in its finish as the English novels which fell under the

destruction order at the same time. Though all of these publications

were in places definitely indecent, unquestionably so, they did not

approximate the filth which finds a more secret means of distribution.

Undeniably, it is extremely difficult as a rule to obtain information

which will reasonably lead to a conviction. Much the same may be said

in connection with the sale of indecent photographs, “pictures,” etc.

This disgusting traffic appears to exist, if it does not actually

thrive. An alien, one of those aliens clothed in the name of “Harris,”

as it happened, received a sentence of three months’ imprisonment, to

be followed by deportation, from the Common Serjeant in February, 1911,

for selling indecent photographs. Cases of the sort arise from time to

time, but it may be assumed that the majority of the offenders escape

scot free, for the simple reason that they do not get “found out.” The

topic is not sufficiently interesting or important to warrant further

notice.

What actually concerns writers, publishers and the public at the

present time is the betterment of the system of freely circulating all

books. This may be taken to refer, not to the “library ban,” which is

influential only from the financial standpoint, but to the application

of the law controlling questionable literature.

The police authorities scarcely indulge in wild hunts for the ghosts

and goblins of indecency until their attention has been very definitely

drawn to the existence of a likely field. That is to say, complaints

come in, and in certain cases they are gone into, with the result that

a prosecution ultimately follows. There are, perhaps, plenty of people

who spend their time in searching for indecent paragraphs in trumpery

novels. It is on their initiative that the police are compelled to

have the works complained of examined, and, if the same are found

to be strong enough to support a prosecution, a prosecution is the

result. Now the whole machinery associated with such a prosecution is

cumbersome, variable and unsatisfactory. The most choice work of genius

may fall under the same axe as the literary outpourings of a woman

better adapted to the _métier_ of a _cuisinière_. It is the difference

in quality and the similarity in fate which demand criticism. The

police defence would be that there exists in the works of both types

the common fault of indecency. (The word “police” is used for want of

a better descriptive title for the persons actually engaged in the

examination of questioned publications.) That may be true enough.

Suppose, however, that a worldly magistrate chooses to discriminate,

suppose also that he is fortunate in having some tangible ground for

doing so, the decision of the case must tend towards the support of the

able writer and the condemnation of the material produced by the writer

whose _raison d’être_ is base.

Setting aside all question of literary values, there is one notorious

novel which seems to be as indecent in some places as the novel

“According to St. Paul.” The former--it must be left nameless here--was

sold openly for several years in London, and, so far as one knows, is

still sold openly. The latter, in its original form, at any rate, was

extinguished twice over at Bow Street. Now the distinction between

the two novels lies almost wholly in the quality of the writing. If

this question of quality were to rigidly decide the result of every

prosecution, there would be no need to say any more. But it forms

an untrustworthy precedent, battered down in dozens of other cases.

Consequently, the pursuivant of letters is left confronted by doubt

and uncertainty. If he be endowed with skill, he is forced to use such

skill in evading much which may be artistic and human in its import.

He must treat his subject with great circumspection, hamper himself

at every point, and leave his best efforts untried. For, after all,

“best efforts” in the writing of novels are often those produced by

the treatment of passion, not necessarily indelicately. Passion is,

however, a pitfall to the English or American novelist.

A writer who knows “things” has a better chance of escaping difficulty

than one who flounders into print on a meagre social knowledge. This is

the utmost that can be said, and it is not satisfactory either to the

writers themselves, or to the publishers. In short, what really seems

to be needed is a system of censorship. It would protect publishers

and printers, and save writers some anxiety. It should, perhaps, take

the form of a small department, non-political in character, with a

staff of qualified persons, whose duty it would be to read and “pass”

or “reject,” subject to alteration, all manuscripts submitted by

publishers.

The censorship should not be constituted for the purpose of greatly

restricting freedom of expression, but, rather, only to check gross

license, with impartiality. Dramatic works might be dealt with by the

same authority as novels, memoirs, and other classes of literature.

Unless the whole scheme of a novel were to run on some revolting moral

question, it should not be condemned by the censorial authority, but

only those portions of it, individual words, lines, paragraphs, or

pages, impartially judged to offend. Once the work submitted had been

passed, subject to the deletion or alteration of condemned passages,

the possibility of a later questioning should be denied. In this way,

the irresponsible fanatic, who now acts as a police irritant or goad,

would have to turn his attention to other spheres of activity. The

existence of the censorship would therefore perform several services.

It would supply publishers and printers alike with definite knowledge

as to their immunity from legal attack. It would serve the purpose of

a barrier between the public and the publisher of obscene or indecent

or blasphemous prints. It would supply a certain sense of security to

the writer, whose copyright royalties are, under present circumstances,

frequently in danger. It would also relieve the magistracy and the

police from a comparatively trivial, though time-filling branch of

work. Some utility of purpose would also be fulfilled where plays are

concerned.

A great deal of gratuitous newspaper advertisement recently attached

to the writer of a play, which was refused the license of public

performance by the Lord Chamberlain. The whole disturbance was idle

enough in its effect, though it helped to recall the existence of the

Examiner of Plays--a person deputed by the Chamberlain to carry out the

work of censorship in practice. Political reasons were said to have

actuated the refusal of a license to produce the play. Such reasons

could also be made the basis for similar refusals (in connection

with dramatic productions, at any rate) on the part of the censorial

authority here advocated.

A censorship would free from the shackles of doubt and uncertainty all

those persons who contribute to the production of a book. An author

would know that at worst his writing was liable to expurgation. In

practice, this could even be carried out by the author himself, in

accordance with the directions supplied by the censorial authority. The

re-submission of the MS. to such authority would mean nothing more than

a further delay, of scant importance alongside the sense of security

afforded by the process.

On the whole, there can be no argument against censorship as strong

as the argument in favour of it, and that is the grossly inconsistent

method of dealing with _risqué_ literature at the present day.

CHAPTER VIII

CAPITAL PUNISHMENT, MURDER AND SUICIDE[28]

Murder, which is the summit of evil-doing according to human canons

is at the same time the most natural act in the world. The so-called

“unwritten law” which weighs up the evidence in favour of a man who

kills his wife’s lover, is not without justice and a sense of fair

play. In England, there is plenty of unwritten law, but it has nothing

whatever to do with the _crime passionel_. However, if _A_ enters the

bedroom of his wife and discovers this unfortunate woman with _B_, _in

flagrante delicto_, to misuse an expression, and he shoots _B_ on the

spot, he stands a very good chance of escaping the supreme punishment

of the law. But if _A_, on seeing his wife in the act of adultery

with _B_, leaves the room, goes downstairs, obtains possession of

his revolver, and then returns to kill _B_, the position is somewhat

different. This particular example supplies evidence of _mens rea_, or

criminal intent. _A_ is not acting in a spontaneous fashion, for he

deliberately goes away and then returns, with murder in his mind. In a

good many parts of the world, either way would be justifiable, and, one

must admit, with some reason.

There is nothing more far-reaching than adultery in a married woman.

Her future offspring may not be that of her husband, and, at best, he

believes her body to be tainted with a poisonous contact. The real

idea of marriage is to keep one woman exclusively for one man, by whom

it is intended she should fulfil the functions of maternity. To have

suspicion of outside intercourse is to destroy everything which is most

profound in the union.

It is usual to divorce a wife who commits adultery, in England: to kill

her lover and to ostracise her from her home are methods left to other

races.

In America, the Thaw case, which attracted more interest than the

facts deserved, was treated in an ultra-civilized manner. Perhaps, if

the events associated with this _cause célèbre_ had taken place in

another State of the Union the results would have been different. It

is true that the relations between Thaw’s wife and White, the murdered

man, had not been resumed after the marriage, though the incidents

immediately preceding the shooting at Madison Square Garden should

have gone a long way towards saving Thaw. Thaw was dining at the Café

Martin, a well-known restaurant something after the type of the Café

de la Paix. His wife, the former victim of White, was with him. White

entered the restaurant and proceeded to make offensive remarks from an

adjacent table. Thaw, no doubt excited by alcohol, was very properly

incensed. Later on, after the incident had preyed on his mind, he

pulled out his revolver and shot White dead. This was at the Madison

Square Roof-Garden. If White had not made offensive remarks at the

expense of Thaw and his wife at the Café Martin, it is most improbable

that any shooting would have occurred. But what with Thaw’s knowledge

of White’s intimacy with the girl in her early days, and the fact that

the offender used it as a taunt in a public place, there is little

wonder that the _dénouement_ was murder. The strict critic may say that

Thaw should not have made such a marriage.

The instinct to kill in a man confronted by another who has been

intimate with the woman who became his wife must be very strong,

particularly among heated temperaments. It is not necessary,

one may perhaps assume, to have “brain storms,” paranoia, or

incipient insanity, to produce the exact state of mind, under given

circumstances, which prompted the shooting at Madison Square Garden.

One somehow feels that injustice has been done the “murderer” by

stamping him with the brand of lunacy. It was the only alternative,

however, as the case went, to the electric chair.

The system of electrocution, meted out to murderers in the State of

New York, is about as bad, or even worse, than hanging, with which it

is intended to deal briefly in the present chapter. There is nothing to

be said against capital punishment, at least on the part of anyone who

has examined the question in practice, but hanging as the means is an

antiquated survival of the witchcraft age (though one vaguely remembers

that “witches” were burnt!).

The French guillotine is a cumbersome contrivance, involving the

employment of an expert manipulator, with trained assistants, and

impedimenta. In Germany, where the executioner wields an axe, there is

the possibility of an absence of precision which fails to recommend

the method. Quite a dramatic scene was witnessed at the execution of

a female poisoner in the Kaiser’s dominions the other day. The story

suggested a Sanscullotic (Carlyle is responsible for the word!) outrage

of the French Terror. No, the executioner with the axe is a poor way of

fulfilling the last rites of the law.

If the Kneller portrait of James Scott, Duke of Monmouth, painted

after execution, is faithful, the executioner was singularly adroit

with his axe. But the use of the axe depends too much on personal

dexterity in the evasion of the atrocious. As an institution it is,

therefore, to be condemned. Hanging, on the other hand, has the Lee

case as a perpetual warning against it. (It will be remembered that a

murderer named Lee would not “hang.” He ultimately had his sentence

commuted to life imprisonment, from which, as an anomaly of the law,

he emerged in good health, after serving some twenty years.) It is

elaborate, and anything elaborate, in respect of such a matter as

the death penalty, savours of anachronism. Of course, there is some

traditional or legendary nonsense about the ignominy of hanging as

opposed to execution by the axe, but humanly enforced death is as

bad in one form as in another so far as the victim goes, so that the

argument hardly impresses one with its strength. Then, too, the whole

scheme is barbarous in practice; not that the would-be murderer is more

deterred by the fear of hanging than he would be by the fear of death

from a volley of muskets, but the machinery necessary for carrying out

a death sentence by hanging is out-of-date, crude, and not compatible

with the advance of the times. By far the simplest, cheapest, most

effective, worthy means of supporting the majesty of the law in its

supreme act of retribution is by the shooting of murderers on the day

set for execution. Half a dozen soldiers, drafted from the nearest

barracks, could be ordered to fire a volley at the condemned man in

the prison yard, or in any other place convenient to the authorities.

The inclusion of soldiers need not necessarily be a stumbling-block.

Armed prison warders, with some substantial idea of the uses of a gun,

would fulfil the same purpose. Death, to the condemned man, would be

just as humane in the abruptness of its arrival as the “six foot drop”

(or whatever prison parlance and the height of the victim make it). The

only good thing about hanging is its comparative cleanliness. That is

to say, there is not a deluge of blood from the person hanged, as there

is in the case of one decapitated. That is all very well, but death

from a volley of muskets does not produce the effects associated with a

slaughter-house, either.

Hanging is little less ridiculous than the Chinese custom of

walling-in a parricide with masonry, air-holed to delay death. Indeed,

it is no more appropriate to modern ideas than death from the Tarpeian

Rock would be. It is quite inconceivable that the rope should have

stood firm as an instrument of execution as long as it has. In the

days, not so far back (as recently as 1868), when hanging was carried

out in public, it had a certain awe-inspiring influence on the ignorant

mind. But now that the death penalty is executed within prison walls,

the quickest, easiest, and least complicated method must inevitably

recommend itself as the best. Death by the volley of muskets should

take an easy lead, at any rate over hanging. To pinion a man, to stand

him against a wall, and to order a handful of troops to fire, are

acts simple and certain in their effect. Advance arrangements become

unnecessary. The boxing and burial of the dead body are no different,

after such an episode, than the boxing and burial after a criminal has

been hanged. The removal of the evidence of taking blood is a detail.

As a concession to the _soi-disant_ humanitarian, blindfolding could be

adopted to ameliorate the condition of the condemned.

The writer is no violent antagonist to hanging; he is merely of opinion

that it could be superseded with some advantage, chiefly because the

formula is based upon an antiquated conception of punishment, which

does not seem to him to be as promising as the simple method of

shooting down the condemned criminal.

A paragraph of some interest may be taken from the current press. It

is headed, _Optional Suicide: Choice for Murderers_, and it runs as

follows: “A novel law providing an alternative to hanging for murderers

on whom the death sentence has been passed was presented to-day to

the Nevada Legislature. It sets forth that any person about to suffer

capital punishment, may, if he pleases, swallow a dose of hydrocyanic

acid. The new law was framed by a Code Commission, partly as the result

of the difficulty in finding an official executioner in Nevada. The

officers of the law, it seems, have frequently objected of late to

figuring in executions, on the ground that though the death sentence is

provided by the law, they are in fact guilty of voluntarily bringing

about death. The members of the Code Commission, therefore, adopted

a suggestion based on the cup of hemlock drunk by Socrates. If the

new law is passed by the legislature, condemned murderers, after the

sentence has been pronounced, will be allowed in future immediately

to designate the method of death they prefer. Ten minutes before the

time appointed for execution, a physician will visit the prisoner in

his cell and hand him (or her) a packet of poison, and explain its

effect and the proper way of taking it. The Bill sets forth that on

the receptacle containing the poison it shall be plainly written:

‘There is contained herein a sufficient quantity of hydrocyanic acid

to cause instantaneous death. You are authorised to take the same for

the purpose of carrying into execution the sentence of death heretofore

legally pronounced against you.’ It is further provided that ‘if the

defendant, after having elected to take the hydrocyanic acid, shall

fail or refuse to take the same, he shall forthwith be hanged by the

neck until he is dead.’ The majority of the Legislature are reported to

favour the Bill as framed by the Code Commission.”

The alternative of suicide given to the person under death sentence

does not recommend itself to English ideas. The sensibility of “the

officers of the law” in Nevada should be remedied by an infusion

of new blood. It is noticeable that the suicide suggestion is an

alternative to hanging, which appears to be the form usual in the State

of Nevada. Perhaps, the execution by a volley of muskets would appeal

to the requirements of the Nevada Legislature?[29] Particularly, as

the shooting could be done by the soldiery, or by marksmen other than

“officers of the law.”

Where several persons fire at one and the same time, it is practically

impossible to say which one is responsible for the shot which actually

causes death in the person fired upon. This ignorance has often helped

to soothe the soldier of sensitive conscience when, with others, he has

had to obey the order to fire on a spy or other person liable to death

under martial law. This indirectly suggests one of the most curious

possibilities of legal inadequacy. What is the position of a soldier

ordered by his officer to fire on a mob? Metaphorically, he is between

the devil and the deep sea. If he fires on the mob, he may be called

upon to account for his act to a civil tribunal, and thus be found

guilty of murder and hanged. While, on the other hand, if he does not

fire upon the mob, when so ordered by his officer, he may be tried by

court martial and shot!

To turn from murder to suicide and attempted suicide, much suggests

itself as anomalous and even absurd in the laws and customs of England

in this connection. There is an element of farce in the arrest,

detention and prosecution of some wretched man or woman who has

unsuccessfully endeavoured to escape from life.[30] Suicide attracts

numberless persons, excited by neurotic impulses. Sometimes a woman,

_enceinte_ and deserted by her lover, throws herself into a canal

or into the river. A man guilty of misappropriation, on the verge

of having his misdeed discovered, takes poison, shoots himself or

tries to jump in front of a railway train. If the poison comes up,

if the shot is inaccurate, or if there is a pit of salvation between

the railway metals, the would-be suicide may find himself before a

magistrate the next morning, with a burly policeman as his accuser.

A well-meant anomaly. When it has run its course, the accused may

be proceeded against by the person who has suffered through his act

of misappropriation. There are women who in moments of pique or

unreasoning rage, do away with themselves, largely because they cannot

conveniently vent it upon the cause of their discomfiture. Among

women-servants of inferior type, there is a tendency to commit suicide

because of some faithless lover, or other cause. These misguided

creatures generally first write a pathetic letter, disjointedly stating

their grievances, with the full confidence that it will be published in

the newspapers of the Sunday following the inquest. This strange vanity

throws a pitiful ray on the phases of the ignorant mind. Of course,

suicides are not confined to the lower or intermediate classes, but

they are more generally found among persons whose lot is not alleviated

by fortune or gentle birth.

Suicide is not always incomprehensible, though the coroner’s jury,

with its constant verdict, “during temporary insanity,” would seem to

make it so. There are plenty of people afflicted by disease, medical

men among them, who cut their throats or shoot themselves in desperate

resignation. For purposes of convenience, they are described as of

unsound mind by the considerate jury. Admittedly, an individual who

takes his own life is, _primâ facie_, unbalanced--the act indicates it.

Then, too, physical disease, which has preyed upon a man’s health until

his judgment has become warped, produces a form of _quasi_-insanity.

The suicide verdict, “whilst of unsound mind,” may also be agreeable

to surviving relatives and persons with claims against insurance

companies, but, strictly speaking, its accuracy is generally doubtful,

unless a “warped” mental state, hysteria in women, and the product of

the goadings of misfortune, are symptoms of definite insanity. If this

is so, there are few people in the land who approximate “sanity.” Of

course, in subjects who advance to the length of suicide the defects

specified have reached the stage of personal dominion, or, under

another name, _idée fixe_, in an acute form. This may technically

justify the insanity verdict, but it is questionable whether anything

else would, if one makes allowance for class and ignorance.

By the same process, the man who is goaded into theft by sheer hunger

must likewise be insane. His misfortunes have produced the hunger and

the hunger the theft. Thus desperation is often forced upon a man by

want of funds, something which means prospective, if not immediate,

hunger, and the sense of desperation in its most active state brings

about suicide. Whitaker Wright, the convicted felon, committed suicide

to escape a term of penal servitude. He had a reasonable, if not a

justifiable, motive for his act. So far as one remembers, off-hand, no

“temporary insanity” verdict was recorded in his case. Its balsamic

effect is, however, demanded in countless instances where suicides

have been prompted by equally explainable motives. Altogether, the

coroner’s jury’s verdict, of “suicide whilst of unsound mind,” is

generally inconsistent with the actual facts which led to the act of

self-destruction.

But the greatest anomaly of all in relation to the verdicts of

coroners’ juries is the murder verdict at an inquest. Why should

a perfectly irresponsible body, for a coroner’s jury _is_ an

irresponsible body in deciding the guilt of an accused murderer, find

_A_ guilty of the wilful murder of his wife _B_ before the Grand

Jury[31] has even found a true bill against _A_? The practice is

utterly absurd. (It may be said here, in parenthesis, that it seems

a waste of public money to carry on a police court prosecution and

proceedings before the coroner in connection with the same murder

charge. It should be noted that an accused person can be committed

for trial on the coroner’s warrant, though it is usual for the police

magistrate to do the committing.) It will be remembered that the

notorious Crippen case occupied the attention of a coroner and his

jury for some little time. There, certain fleshy remains found buried

in the cellar of a house in an outlying district of London, formed

the subject of the inquiry. It was alleged that they were portions

of a woman’s body. No bones were discovered by the police, and a

good deal of speculation was rife as to fixing the flesh with the

hall-mark of identity. It was admitted from the outset that the flesh

in question was human flesh, but beyond this a difficult task seemed to

lay before the authorities. It was made less irksome by the presence

of an operation scar, which turned out to have been on the body of

Crippen’s wife. The coroner’s jury ultimately found that the flesh

was the flesh of Cora Crippen, _alias_ “Belle Elmore,” and that H. H.

Crippen, formerly her husband, was guilty of her wilful murder. There

was no reasonable doubt as to the accused man’s guilt from the first.

He had carried on a practice as a medical quack, and in the course

of his business had employed a typist, Ethel Le Neve, or Neave, with

whom he cohabited. The Crippen woman disappeared somewhat suddenly;

inquiries were then set on foot by her friends to ascertain the truth,

which the husband failed to supply. Soon after receiving a visit from

a police-inspector, H. H. Crippen himself disappeared, and it was only

after frantic efforts had been made that the man was discovered to be

on board a vessel in mid-Alantic. Accompanied by his mistress, he then

fell an easy prey to his pursuers--after half Europe had been searched

for him in vain. The murder of which he was accused was a peculiarly

atrocious one. After poisoning his victim, he had deliberately set his

partial knowledge of anatomy to account by dismembering the corpse,

disposing of the bones and secreting the flesh. The man’s remarkable

nerve, employed in a legitimate channel, might have made him successful

in life, instead of making him the object of a hue-and-cry from St.

Petersburg to San Francisco. The story in detail, is newspaper history.

To return to the legal side of the matter, which has numerous less

notorious parallels, Crippen had been found guilty of the wilful murder

of his wife in the coroner’s court, though he had not yet been tried

by any jury qualified by law to convict him of the crime. To point

out a further anomaly, _i.e._, the fiction that an accused person is

assumed to be innocent until proved guilty, it may be argued that up

to the time of his trial at the Central Criminal Court, Crippen was

technically an innocent man, though he had already been found guilty

of wilful murder by an unauthorised body of jurors! Such a hopelessly

inconsistent state of affairs is grotesque in this country which

is held up as a pattern of justice and legal perfection generally.

Of course, in the Crippen case there was no sort of doubt whatever

as to the accused’s guilt; the case is here quoted because it may

be fresher in the public mind than many other cases, which portray

similarly anomalous features. At some trials, jurors are subjected to

downright inconvenience with a view to preventing their contact with

prejudicial persons or prints. In the Crippen case, the members of the

Old Bailey jury may reasonably have been expected to see newspaper

reports dealing with the verdict of the coroner’s jury. If they did

so read the information contained in these reports, they knew that

Crippen had already been _found guilty_ of the wilful murder of his

wife, Cora Crippen, a crime for which they were about to try him. Truly

enough, Crippen was convicted of murder at the Old Bailey, on evidence

of a remarkably satisfactory character, taking into consideration the

complexity of the original clues. But though this is in fact the case,

there is no gainsaying the grossness of the system which permits a man

to be publicly found guilty of a terrible offence for which he has not

yet even been tried.

The coroner’s jury’s verdict of “wilful murder” should be relegated to

ancient history in these practical times when precision and definity

rule all things. A coroner’s office gains no lustre by submitting its

holder to the satirical function of hearing verdicts which are not

verdicts in law or practice, but which, nevertheless, are liable to

confuse the ignorant mind and to do harm where good is intended. It

should be remembered that jurors are not as a rule drawn from a class

of original thinkers, persons, that is to say, who are intellectually

trained to discriminate--to judge for themselves. Even if they were,

the existing custom of allowing a murder verdict to be returned before

a case goes for trial is both prejudicial and improper.

FOOTNOTES

[28] See Appendix D.

[29] Some such scheme appears to have been adopted since this chapter

was written.

[30] “No fewer than four persons were charged at Marylebone

police-court this afternoon with attempted suicide.

“The first was a domestic servant, who was found lying in the road,

having taken poison.

“The Rev. Mr. Shaw, of Dulwich, said she had been in his service

sixteen months, but left a week ago to enter the service of the sister

of a great friend of hers. The situation was a great disappointment to

her, however, for ‘she was accustomed to be in rather refined service,’

and she complained that she was unable to wear any of her new frocks.

The result was that she left, and her great friend had thrown her over;

hence her position in the dock.

“Mr. Paul Taylor remanded her, saying he had never known a woman to

attempt suicide for less adequate reasons.

“The other defendants were men. Two were remanded, and the third was

discharged, as he denied that he wanted to kill himself--he bought the

laudanum found on him for his teeth.”--_Current Evening Paper._

[31] Reference to Grand Juries reminds one that the late Mr. Justice

Stephen (Sir James Fitz-James Stephen) “expressed his inability to

understand why a man should be presumed to be innocent when a Grand

Jury have sworn that they thought him guilty.” (Mr. A. T. Carter,

D.C.L.) It has been pointed out to the writer, by the way, that

the members of a Grand Jury sometimes throw out a bill, because,

“Otherwise, what are we here for?” In other words, without applying

any very special discrimination, they take upon themselves a function

opposed to the expert judgment of the committing magistrate, who has

heard all the evidence.

CHAPTER IX

LEGITIMATION[32]

The legitimation of natural children by the subsequent marriage of

their parents does not apply in England. It is for many reasons a

defect in the law that this should be so, inasmuch as the process of

_legitimatio per subsequens matrimonium_ often rights a wrong and does

justice to those who are kept out of a natural right by the unnatural

state of the law.

The only way by which the ordinary law can be surmounted respecting

the legitimation of natural children in this country is by means of a

Private Act of Parliament, an expensive, if not a difficult, instrument

to obtain. Among persons of limited income, the financial expenditure

necessary is a definite barrier.

In these times when fact rules, not the fiction of a long past,

there can be little excuse for keeping back the clock in the matter

of legitimation. If a man has lived with an honest woman and had

children by her, he ought to be able to give those children every

possible privilege and right by performing with their mother the

simple requirements of the law relating to marriage. The Private Act

of Parliament now needful to satisfy the English law should be made as

obsolete as the Private Act of Parliament required to secure a divorce

before the year 1858. Great benefit would accrue to the community by

the easy change suggested. It is not possible to fathom or gauge the

magnitude of a thing like the illicit union. It exists here and there

among all classes. Where there are children, there would be a distinct

incitement, were legitimation by subsequent marriage in force, to the

legal tie. The artistic temperament, for want of a better name, is

responsible for many such unions, and their legalisation would be a

temptation to a man who desires to leave his name and blood on the

earth without having to start afresh with some other woman on the legal

system. The healthy and characteristic appearance of his own living

stock are forceful incentives towards freeing it from all disability in

law, the more so, when he knows that the mother was, and is, moral in

instinct and in fact.

In his _Roman Law_, Lord Mackenzie makes some interesting

references to the theme. “Apart from the effect of legitimation,”

he writes, “the Roman law only considered those children lawful at

their birth who were begotten in marriage. It is a peculiarity of the

English law that it does not concern itself with the conception, but

considers a child legitimate who is born of parents married before the

time of birth, though they were unmarried when he was begotten....

The legitimation of children _per subsequens matrimonium_ originated

in a constitution of Constantine, which has not reached us, though

its tenor is given in a law of the Emperor Zeno, who renewed it. The

import of it was, that persons who had been living in a state of

concubinage, which was then a condition of society not condemned by

Roman customs, might, by entering into marriage, render the children

born in that state legitimate, provided the woman was _ingenua_, or

free-born, and the man had not already children of a lawful wife. The

general object of this law probably was to encourage persons who had

been living in concubinage to enter into marriage. Justinian extended

the law of Constantine, by declaring that children born in concubinage

should be legitimate generally, whether the father had legitimate

children by a lawful wife or not; and he removed the distinction as to

the woman being _ingenua_ or _libertina_. The children so legitimated

were subjected to the paternal power, and entitled to all the rights

of lawful children.... By Roman law the privilege of legitimation _per

subsequens matrimonium_ was strictly confined to the children of a

concubine, and did not extend to any other description of bastards....

Another kind of legitimation, _per oblationem curiæ_, was introduced

by Theodosius II., A.D. 445. As the duties of a _decurio_ were very

onerous, and accompanied with risk, a natural son who undertook the

office was thereby rendered legitimate. A natural daughter who married

a _decurio_ had the same privilege. Finally, Justinian added a third

species of legitimation, _per rescriptum principis_, when the emperor

declared natural children legitimate upon the requisition of the father

in certain special circumstances; as, for instance, when marriage

with the concubine had become impossible, and there were no lawful

children--or when the father, who had from some fortuitous cause been

prevented from legitimating his natural children in his lifetime,

declared in his testament that they should succeed to him as lawful

children and heirs _ab intestato_.... The doctrine of legitimation

by subsequent marriage is said to have been established in the canon

law by two constitutions of Pope Alexander III., preserved in the

decretals of Gregory. The canon law was more indulgent than the

Roman law, in granting the privilege of legitimacy not merely to the

offspring of concubinage, but to children begotten in fornication,

when their parents were afterwards married, provided the father

and mother were capable of contracting marriage at the date of the

sexual intercourse.... Legitimation by subsequent marriage was never

acknowledged by the law of England. When the clergy struggled to

introduce the rule of the canon law, it was indignantly rejected by the

famous statute of Merton, the English barons declaring with one voice,

‘quod nolunt leges Angliæ mutare quæ usitatæ sunt et approbatæ.’ From

the earliest period the English law has considered a child born before

marriage (_ante natus_) as illegitimate. And it has been decided,

that even where the child is born and the parents are subsequently

married in a foreign country, the law of which allows legitimation by

subsequent marriage, he is nevertheless incapable of inheriting land

in England.... On the other hand, the rule of the canon law, which

allowed the legitimation of all bastards, provided they were not the

offspring of an incestuous or adulterous connection, has been followed

both in France and Scotland, not by authority of the decretals, but

_in consequence of the equity and expedience of the rule itself_.[33]

By the French Civil Code (art. 331-333) it is declared: (1) ‘Children

born out of wedlock, other than those born of an incestuous or

adulterous intercourse, may be legitimated by the subsequent marriage

of their father and mother, provided the children have been legally

acknowledged before marriage, or in the act of celebration itself. (2)

Legitimation may take place even in favour of deceased children who

have left descendants, and in that case it operates in favour of these

descendants. (3) Children legitimated by subsequent marriage shall have

the same rights as if they had been born of that marriage.’... By the

law of France, marriage makes the children of an illicit connection

legitimate, although one of the spouses has, after the connection

and the birth of the children, contracted a marriage with another

person, and the parents have only married after the dissolution of

that marriage. As the child legitimated is considered to be born of

the marriage which has made him legitimate, he cannot participate in

a succession which has opened before that marriage, though subsequent

to his birth. For the same reason he cannot claim any preference,

in respect of mere priority of birth, in any question of succession

with the children of the intermediate marriage.... In Kerr v. Martin,

which was elaborately discussed in the Court of Session, the question

was raised, whether a marriage of either of the parents with a

third person, after the birth of a natural child, formed a bar to

legitimation by the subsequent marriage of the parents. Though the

judges were divided in opinion, the Court, by a majority, decided that

the child was legitimate, and that no mid-impediment was created by

the intervening marriage.... In Scotland, legitimation by subsequent

marriage confers upon a bastard the rights of a lawful child. Besides

being entitled to legitim, he succeeds under a destination to lawful

children. In any question with the children born of the bastard’s

parents in lawful wedlock, he has the same civil rights, as regards

succession and otherwise, as he would have enjoyed had he been born in

lawful marriage. But where there is lawful issue of an intermediate

marriage by one of the parents with a third person, a child legitimated

by a second marriage seems only a lawful child of the family as

becoming so by the second marriage, and therefore it is thought he

can claim no preference in respect to primogeniture or priority of

birth, which would have the effect of defeating or prejudicing the

rights of succession of the children of the first marriage arising at

their birth. According to this view, if the father had a natural son,

and after this a lawful son by a marriage with a third person, and

then entered into a second marriage with the mother of the bastard,

the lawful son by the first marriage would be entitled to the Scotch

heritage _ab intestato_, and could not be deprived of that right by the

legitimation of the natural son arising from the _second_ marriage.”

An interesting point of French law, which remains controversial in

Roman and Scottish law, according to the authority of Lord Mackenzie,

is that which decides the ineligibility of a child _conceived_ in

adultery to be legitimated by the subsequent marriage of the parents,

even though at the time of such child’s birth the parents were free

to marry. There are other little differences between the French and

Scottish laws relating to legitimation. On the whole, Scotland is

well equipped to deal with all such questions. It remains for England

to follow suit. There is no conceivable room for doubt that if a man

wishes his natural children to become legitimate, he should have the

power to make them so, without the considerable formality of an Act

of Parliament. An Act of Parliament is of course a perfect means of

accomplishment in the sense that it is a law unto itself, but the

expense and difficulty of obtaining such an instrument put it on

an impracticable plane, beyond the reach of nearly all. Though the

interest of many people in legitimation may be merely abstract, the

subject is of some marked importance. The laws of any country are

incomplete without reasonable provision for _legitimatio per subsequens

matrimonium_.

Interesting cases such as the recent Sackville peerage claim and the

earlier claim by “Viscount Hinton” to the peerage of Lord Poulett,

whom he alleged to be his legitimate father, if one may turn a phrase,

come from time to time before the English courts. Neither of the two

claims mentioned was successful, but there appeared to be little doubt

that the claimants in both cases were the offspring of the peers in

question. To fall at random upon history one remembers that William

the Conqueror was a natural son. The Duke of Monmouth, who married

the Countess of Buccleuch (in her own right) was a natural son of

Charles II., like the ancestor of the Duke of Richmond and Gordon, the

ancestor of the Duke of Grafton, and the ancestor of the Duke of St.

Albans, among others. The absence of a legal tie does not prevent the

perpetuation of blooded stock, though convention and policy have made

the tie a very necessary formality.

FOOTNOTES

[32] See Appendix E.

[33] Mr. Chester’s italics.

NOTE IN CONNECTION WITH THE NEXT CHAPTER.

At the moment of going to press, a singularly strange case is

reported in which a convicted murderer, Charles Ellson, has had his

conviction quashed by the Court of Criminal Appeal, irrespective of

the question of his guilt. The report in outline is as follows:

“The first successful appeal made by a person convicted of murder

since the establishment of the Court of Criminal Appeal was decided

yesterday by that tribunal, which quashed the conviction of Charles

Ellson for the murder of Rose Render in Clerkenwell. The man, who was

present in court, was immediately released.

“The decision was on technical grounds, apart from the question of

the prisoner’s guilt or innocence, and Mr. Justice Darling, giving

the judgment of the court, pointed to the case as strengthening their

often expressed opinion that the law should provide the court with

power to order a new trial in such cases.”--_Daily Mail_, Sept. 29,

1911.

CHAPTER X

CRIMINAL APPEAL AND THE BALL CASE

The Criminal Appeal Act is brought into operation nowadays by almost

every notorious murder case. Crippen availed himself of its provisions,

and, again, more recently, Morrison, the South London murderer, drove

his appeal through the new Court.

The end of sub-section (3), section 20, of the Act [see Appendix

F], contains a mildly confusing line, to say the least. It runs,

“But shall not apply in the case of convictions on indictments or

inquisitions charging any peer or peeress, _or other person claiming

the privilege of peerage_, with any offence not lawfully triable by

a court of assize.” Why a person other than a peer or peeress who

claims the privilege of peerage should be entitled to any special

consideration it is impossible to say. A claimant unless his claim has

been admitted, when he ceases to be a claimant and becomes a possessor,

cannot conceivably be entitled to any right appertaining to the dignity

claimed. The only persons entitled to the privilege of peerage are

peers and peeresses, and a claimant to any such privilege must perforce

be a peer or peeress or else be a person with no right whatever to the

privilege of peerage.

The case of R. _v._ Ball and Another is of enormous interest and

importance, so far as the workings of the Court of Criminal Appeal

are concerned. It suggests very forcibly the need for definitely

detaining all criminals pending final appeal, where any intermediate

step may allow of their liberation. _The Times_ newspaper for December

16, 1910, reports the case in the following words: “HOUSE OF LORDS.

Criminal Appeal. Director of Public Prosecutions _v._ William Henry

Ball.--Director of Public Prosecutions _v._ Edith Lilian Ball.

(_Before the_ Lord Chancellor, Earl of Halsbury, Lord Ashbourne, Lord

Alverstone, Lord Atkinson, Lord Gorrell, Lord Shaw _of_ Dunfermline,

Lord Mersey, _and_ Lord Robson.) This was the first appeal to the House

of Lords from the Court of Criminal Appeal, consisting of Justices

Darling, Pickford, and Coleridge, who quashed the conviction against

the present respondents for incest, which was made a criminal offence

by an Act which came into operation on January 1, 1909. The trial took

place at the Central Criminal Court before Mr. Justice Scrutton, who

sentenced the respondents. The Crown appealed under a section of the

Criminal Appeal Act, 1907, as was reported in _The Times_ of November

30.... The Attorney-General (Sir Rufus Isaacs, K.C.), Mr. R. D. Muir,

Mr. Rowlatt, and Mr. Graham Campbell appeared for the appellant; Mr.

Holman Gregory, K.C., Mr. Forrest Fulton, and Mr. Eustace Fulton for

the respondents. The arguments of counsel turned on the admissibility

of certain evidence tendered by the prosecution. The Lord Chancellor

moved that the order of the Court of Criminal Appeal be reversed,

and said that evidence of previous guilty relations between the

respondents was admissible, not to prove the evidence of a _mens rea_,

but in support, having regard to the proved facts, of the particular

charges made in the indictments. The principle that one offence is

not established by proof of a similar previous offence was one which

ought to be jealously guarded; but in the present case the evidence was

clearly admissible.... Lord Halsbury agreed with the Lord Chancellor

for the same reasons. The other noble and learned Lords concurred.

Appeal allowed.”

In _The Times_ for December 20, 1910, the same case is again

reported, this time in its aspect as a novelty. _The Times_, after

giving the heading, “COURT OF CRIMINAL APPEAL. House of Lords’ Reversal

of Criminal Appeal. (_Before the_ Lord Chief Justice _of_ England,

Mr. Justice Pickford, _and_ Mr. Justice Avory)”, states, “Mr. Graham

Campbell, on behalf of the prosecution, said that this Court a short

time ago quashed the conviction in this case, and on Thursday last

the House of Lords made an order reversing that order. The House of

Lords had no machinery for enforcing its order, and it was therefore

necessary to come back to this Court for an order to enforce it. The

Lord Chief Justice: If the order of the Court of Criminal Appeal is set

aside, you say that the conviction will stand? Mr. Graham Campbell:

Yes. The Lord Chief Justice: Have the two defendants had notice of

this application? Mr. Graham Campbell: Yes; the male defendant is

here, but the female defendant is not present.... Mr. Forrest Fulton

(Mr. E. Fulton with him) said he appeared for both defendants....

The Lord Chief Justice: The male defendant must now surrender....

The defendant having surrendered, Mr. Forrest Fulton submitted that

the intention of the Legislature in section 1, sub-section 6, of the

Criminal Appeal Act, 1907--the section which allowed an appeal to the

House of Lords--was that, so far as the individual defendants were

concerned, the order of the Court of Criminal Appeal, in quashing the

conviction, should be final. The decision of the House of Lords was

intended to be obtained for the guidance and direction of Courts in the

future. The object of going to the House of Lords was to get a ruling

on a question of exceptional public importance. The Court of Criminal

Appeal had exercised the function of the jury, and that Court, having

allowed the appeal from the conviction, the position was the same as if

the defendants had been acquitted by the jury.... Judgment: The Lord

Chief Justice, in giving the judgment of the Court, said that in their

opinion there was no doubt as to the power and duty of this Court. The

appeal from this Court to the House of Lords was successful, and the

order of the House of Lords was that the order of this Court should be

reversed, and the natural consequence was that the conviction, if he

might use the expression, was re-established. In these circumstances

the right procedure had been adopted--namely, to come to this Court,

which was a court of record, and apply to have effect given to the

order of the House of Lords, that was to say, to expunge from the

record of this Court the order which had been made setting aside the

verdict and entering a verdict of ‘Acquittal.’ It was said by Mr.

Fulton that this being an appeal by the prosecution, and this Court

having decided that the appeal should be allowed and a verdict of

‘Acquittal’ entered, the Court had no power to make a further order

in consequence of the reversal of their order by the House of Lords,

the decision of that House being, it was suggested, merely for the

guidance of Courts in the future. That was a very serious contention,

and was one which they could not adopt. By section 1, subsection 6, of

the Criminal Appeal Act, 1907, an appeal to the House of Lords might

be brought by the prosecution or the defendant or the Director of

Public Prosecutions if the _fiat_ of the Attorney-General was obtained.

If the defendant, in a case where the conviction had been affirmed,

could satisfy the Attorney-General that the case was one of sufficient

importance, he could take the decision of the House of Lords upon it,

and if he succeeded in obtaining an order of the House of Lords that

the decision of the Court of Criminal Appeal dismissing his appeal was

wrong, he was obviously entitled to ask the Court for an order entering

a verdict of ‘Acquittal’ and for his immediate release. When the

present case was before the House of Lords last week the question as to

the proper procedure was discussed, and an application to this Court,

which had full power to act in accordance with the order of the House

of Lords, was considered to be the proper course. As had been pointed

out by Mr. Justice Pickford during the argument, the finality of the

decision of the Court of Criminal Appeal was subject to the provisions

of the Criminal Appeal Act, 1907. It appeared to them that by virtue of

the decision of the House of Lords the conviction was restored, and,

if necessary, an order would be made amending the record in accordance

with the order of the House of Lords. The male defendant would remain

in custody to undergo his sentence. As regards the female defendant,

there would be an order for her arrest.... Mr. Forrest Fulton said

that the male defendant had originally given notice of appeal against

sentence as well as against the conviction. In view of what happened,

the question of sentence was not gone into. He (counsel) said he would

like a short time to consider as to this part of the appeal. The

Lord Chief Justice said the case could be put in the list again, if

necessary, early in the next sitting for this point to be considered.”

The Ball case brings out with dispassionate accuracy the utterly

fantastic possibilities of intermediate acquittal, followed by an order

for re-arrest. Whether the authorities, in this particular case, took

the precaution to carry out a very needful network of surveillance,

between the discharge of the prisoners by the Court of Criminal Appeal

(when the convictions were set aside), and the moment when the Lord

Chief Justice gave practical effect to the order of the House of Lords,

one does not know.

A prisoner once convicted at the Central Criminal Court should have

no very substantial grievance against law and order if later on he

is watched during an appeal _entr’acte_. He is in a vastly better

position than the prisoner convicted before the advent of the Criminal

Appeal Act, when the conviction usually stood until the sentence had

been worked out. The word, “usually,” is meant to add distinction

to the occasional commutation of a death sentence, and to any other

punitive abatement arising out of the prerogative of mercy, or from

personal good conduct on the part of the convict. Under the new system

of appeal, fresh opportunities are allowed the convict to obtain an

acquittal. It seems clear, therefore, that until the final appeal

has been settled, he should either be kept under close observation

or detained in custody. It may be un-English to spy upon the every

movement of any man, but it is practical and even necessary under the

possibilities afforded by the Act of 1907.

CHAPTER XI

CLIENT, SOLICITOR AND COUNSEL

A member of the Bar who ventures to touch such sensitive plants as

professional usage and etiquette must almost of necessity do so with

a sense of diffidence and modesty, that is, if he is not to outrage

his _esprit de corps_ and attack his own training in the traditions

of a great _métier_. The partial aim of this chapter is, in avoiding

revolutionary language, to state as clearly as possible what strikes

the travelled barrister as a radical disadvantage in his profession.

Usage has made it necessary, except in certain criminal court cases,

for a client to go to a solicitor--who in due course goes to counsel,

if the matter comes within the province of counsel. This intermediate

process of approach is doubly absurd in practice, when it is remembered

that counsel does not always confer with the solicitor himself but with

the clerk instead.

It is suggested that the cumbersome necessity for a client to go

to a solicitor before he can obtain access to first-class advice is

an anachronism at this time. The inaccessibility of all persons has

greatly diminished in recent years, with the result that to keep up

the system of inaccessibility in respect of counsel is often both hard

on the client and on counsel. It is one of the greatest barriers to

the Bar as a means of livelihood. It renders a great profession a mere

speculation, from the financial point of view. It hampers barristers

who would otherwise be able to do as well as the average holder of a

medical degree, something which does not apply at present. A doctor of

medicine, a bachelor of medicine, or a person qualified by the conjoint

diploma of the Colleges of Surgeons and Physicians, has a profession

opened up to him which at least may be used to stave off starvation,

but in the Bar degree there is no tangible reason why starvation

should not be the very first obstacle encountered by the newly-called

forensic aspirant. In practice, of course, members of the Bar are

generally possessed of funds, great or little, but in theory there is

no particular reason why a “gentleman of the long robe” should not be

in some difficulty for the price of his dinner a week after his Call to

the Bar! If one is attacked by illness, one does not send for a chemist

or go to a chemist and instruct him to obtain a physician. One at once

establishes direct relations with the medical adviser. Why should not

this apply equally to the relations of client and counsel? To defend

one’s interests, to secure one’s rights, to punish the wrong-doer,

to advise, are among the functions of counsel. Why should he be cut

off from a client by the obligations of professional etiquette? Why

should professional etiquette exist which places the profession to

which it refers at the mercy of another profession, quite separately

and independently constituted? It is ridiculous to suggest that a

barrister--unless he is extremely well-known, a financial leader of his

profession--is selected by the solicitor’s client. The solicitor more

often than not has the matter in his own hands. Certainly, there is

nothing to prevent a client from going to a solicitor and naming his

prospective counsel and insisting on the employment of such counsel,

but it is not usual as the relations are worked in practice. It is

partly due to the fact that the average client is so hopelessly out

of his element in matters of law. He frequently goes to a solicitor

in trepidation, to almost involuntarily submit to an uncomfortable

process, which the solicitor selects or inflicts at his discretion.

The law is not as a rule a recreation for anyone, save a few persons

whose minds have been turned by years of litigation. Consequently, the

uninitiated client trusts his solicitor implicitly. He is like wet

clay in the hands of a potter. He does whatever is recommended. It

is true that a solicitor has the knowledge that he may be answerable

in a court of law for want of skill in looking after his client’s

interests, but a client does not always know this. Indeed, even the

most rudimentary knowledge in connection with the law and its practice

is absent in the average person who goes to a solicitor for advice.

And yet the solicitor’s own knowledge is frequently little above that

of a mature office-boy, though he generally manages to apply it to

his own personal profit, at any rate! One does not tar all solicitors

with the same brush: there are many worthy exceptions; still, there

is something in the profession of a solicitor which seems to produce

certain generic failings.[34] The bad name of the profession in the

eyes of the public is not altogether unfounded; it is something more

than a cheap superstition or tradition. It gathers force when one comes

into frequent contact with some firms, which are licensed to practice

the law. The size of the offices and the number of persons employed are

not criteria of honesty: one knows of cases where seemingly prosperous

firms in the best and most central districts are no more trustworthy

than the solitary tottering scamp who struggles in a meagre garret. On

the other hand, it is a gamble to go to any solicitor, unless one has

definite evidence in advance that he is reputed to be just and honest

in his methods--and has practised his business for some years. There is

no scoundrel like an old scoundrel, of course, but a well-established

firm is _primâ facie_ better equipped with the requirements of a

client than some new firm which has not yet quite felt its feet. Long

established firms go wrong like newly-established ones, though they are

perhaps, generally speaking, less liable to, as they have more to lose,

if the practices they have carried on have been reputable. As a partial

standard of guidance it is, therefore, wise to go to an old firm

rather than to a new one. But general reputation, and recommendation

by former clients, are, after all, the best means of judging such

questions off-hand. One recalls an instance where a King’s Counsel,

retired from practice, recommended and upheld in obvious ignorance a

most shady firm, which, however, had exceedingly well-illuminated,

large, and central offices! With such an example in one’s memory, where

one knows the firm to be dishonest, one can but fear that the best

recommendations are apt to err.

The present writer holds no brief to attack the profession of the

solicitor: quite the contrary. But he is compelled to admit that he

has found many solicitors guilty of “dirty tricks” (for which there

are no punishments) towards their clients. “Dirty tricks,” a vulgar

but exactly expressive term, may be said to represent those acts in

which a man of honour or ordinary decency, even, could not indulge. To

cite some actual examples:--Deceitfully obtaining a signature charging

certain property with an exaggerated bill of costs on the tacit

understanding that a loan is to be the result; getting possession of

papers under a false pretext, where the circumstances are such that

no remedy exists in law for their recovery; disclaiming a telephone

message because its dispatch cannot be established in a subsequent

action; denying the receipt of a client’s funds until threatened with

the police. These and dozens of other somewhat similar occurrences

come to mind with clearness. That they are repeated daily all over the

country is almost indisputable. Petty deceit and meanness are qualities

which are to be found in a flourishing state in many solicitors’

offices. A straightforward and reputable solicitor would be the first

to admit as much. There is some satisfaction in knowing that there are

still many of the latter type left, though mischance often brings a

client into contact with the opposite variety, to his cost.

In suggesting that counsel should be enabled to advise a client

without the intervention of a solicitor, the writer is influenced by

the greater practical benefit of such a change. That branch of legal

business which is now in the keeping of the solicitors might remain

so; the system of carrying out the office work side of a case would

therefore be on the present basis. But, while the two professions

could continue to perform their accustomed functions, the alternative

for a client to approach counsel direct should be approved and

sanctioned. A freer atmosphere and greater scope would be bestowed upon

junior counsel if he were able to receive his clients as a medical

practitioner receives his patients.

In France, there is the distinction between the _avocat_ (or

barrister) and the _avoué_ (or solicitor), and yet there appears to

be no hindrance upon the freedom of the _avocat_ in respect of an

intermediary. In America, the counsellor-at-law, or “attorney-at-law,”

as he is called in Pennsylvania, unites in his legal qualification

the right to practise as a solicitor or as a barrister or as both. As

a matter of fact, an American law office generally contains several

counsellors-at-law, who divide the court and office work up between

them. In point of right, however, the counsellor-at-law is perfectly

justified in carrying on the joint profession of a barrister and a

solicitor. This system is not recommended here, though it seems to

work well in America. All--and it may appear a great deal to some

people--which one ventures to recommend is the freeing of counsel

from the disability of compelling a solicitor’s intervention. That

is to say, no change in the existing system is recommended beyond

sanctioning the more direct form of access. A solicitor could intervene

in the ordinary way between a client and counsel, but counsel should

be at liberty to advise, or to advocate the cause, of any client who

chose to present himself without the usual intermediary. Advance of

the times must almost certainly produce some such system. There can

be little doubt that the profession of an advocate would be much

facilitated by the change. Indeed, the only possible sufferers would be

the solicitors, whose profession offers sufficient variety of work to

enable them to sacrifice the costs arising from the invariable custom

of intervention. In a great number, perhaps, truly, in the majority, of

cases, the present custom might continue to apply; in some, in many,

confessedly, clients and barristers would alike avail themselves of

the less circumscribed relations. If a member of the Bar is allowed

to take “a docker,” or defence direct from a prisoner in the dock, he

should certainly, it seems only just to infer, be allowed to admit a

client to his chambers, unaccompanied by a solicitor. The fee could

be collected by the clerk on the same cash principle which applies

to the transactions of the greatest medical experts, or specialists.

Certainly, the suggestion has something to recommend it, particularly

in these days of practical thought.

If a barrister of the Court of Appeal of Paris, or a member of the New

York Bar, can be approached direct, there is reason to suppose that

the system suggested is neither gross nor one calculated to destroy

prestige.

The question of counsel’s fees is not without some interest to

laymen, as well as to those more intimately concerned. The great

incomes derived from practices at the Bar are largely imaginative. The

forty thousand a year of a certain very well-known practitioner was

probably never more than approximated by half that sum in reality. The

sixty thousand odd attributed to a leader of the Parliamentary Bar

in his ordinary years was also, in all probability, half fictitious.

Large fees, of course, have been known in every age. Under the Roman

Republic, M. Licinius Crassus made a fortune from advocacy, which

fortune, it is said, exceeded three millions sterling. He carried the

reputation, however, of exacting exorbitant fees from his clients. A

similar charge was made against P. Clodius and C. Curio. Cicero, too,

though he boasted of his respect for the Cincian law, which prohibited

the remuneration of advocates, was not without suspicion of mercenary

conduct. Lord Mackenzie, who touches upon the subject, believes that

he extracted a million sesterces (about £8,000) from Publius Sylla,

who was under impeachment. The money was cloaked, according to the

custom, as a loan, but there is no doubt it was paid in exchange for

Cicero’s services as an advocate. Another Roman method of rewarding

members of the Bar was by legacies left them by their clients in their

wills. These bequests were looked upon with some favour. Cicero boasted

that he had received in this form sums amounting to upwards of twenty

millions of sesterces, which was the equivalent of about £166,666.

It is interesting to note that there was a division of lawyers into a

first order, of _advocati_, and into a second order, of _formularii_,

under the Roman Empire.

Members of the English Bar, it may be pointed out, cannot sue for fees,

“although there be an express contract to pay them.”

“In France, ancient laws and decisions, as well as the opinions of

the doctors, allowed an action to advocates to recover their fees; but

according to the later jurisprudence of the Parliament of Paris, and

the actual discipline of the Bar now in force, no advocate was or is

permitted to institute such an action.” (Lord Mackenzie.)

So far as large fees are concerned, the £8,000 paid to Sir Thomas Wilde

(afterwards Lord Truro) in the case of Small _v._ Attwood is something

of a record, though it is eclipsed by the 300,000 francs received by

Gerbier, the eighteenth-century French advocate, from a French colonial

governor.

“In the sixteenth century, and for some generations previous, it

was customary for clients to provide food and drink for their counsel.

Here is an extract from a bill of costs made in the reign of Edward

IV.--‘For a breakfast at Westminster spent on our counsel, 1_s._ 6_d._;

for boat hire in and out and a breakfast for two days, 1_s._ 6_d._’

Another item, from the parish books of St. Margaret’s, Westminster,

runs thus--Also paid to Roger Fylpott, learned in the law, for his

counsel given 3_s._ 8_d._, with 4_d._ for his dinner.... When Sir

Thomas Moore lived in Bucklersbury, he ‘gained, without grief, not so

little as 400_l._ by the year. Considering the relative profits of the

Bar, and the value of money,’ says Lord Campbell, ‘this income probably

indicated as high a station as 10,000_l._ a year at the present day.’

In the reign of James I., the nominal salaries paid to the judges and

Crown lawyers were extremely low; their real incomes were derived from

certain fees which had to be paid into Court before any suitor could

obtain a hearing. ‘Francis Bacon,’ says Mr. Hepworth Dixon, ‘valued

his place as Attorney-General at 6,000_l._ a year, of which the King

paid him only 81_l._ 6_s._ 8_d._.’ Mr. Dixon goes on to mention several

similar instances, adding, ‘Yet each of these great lawyers had given

up a lucrative practice at the Bar. After their promotion to the Bench

they lived in good houses, kept princely state, gave dinners and

masques, made presents to the King, accumulated goods and lands.’ Sir

Edward Coke had made a still larger income as Attorney-General, the

fees from his private and official practice amounting to 7,000_l._ in a

single year.... We confess ourselves unable to reconcile such figures

as these with Lord Campbell’s statement about Sir Thomas Moore. Either

within a hundred years the value of money had enormously declined,

or Coke was making an income far exceeding anything attainable at

the present day. In his survey of the state of England in 1685, Lord

Macaulay says:--‘A thousand a year was thought a large income for a

barrister; 2,000_l._ a year was hardly to be made in the Court of

King’s Bench, except by Crown lawyers.’ Mr. Jeaffreson (in his _Book

about Lawyers_) impugns the accuracy of this statement, holding that

the former part of it is based on a passage in _Pepys’s Diary_. As long

ago as 1668, the Admiralty was a favourite target for Parliamentary

orators to shoot at, and Mr. Pepys, after priming himself with good

liquor, made such a spirited speech in behalf of his department that

his friends complimented him hugely, assuring him that if he would but

put on a gown and plead at the Chancery Bar, he could not get less than

1,000_l._ a year. We see nothing to complain of in this portion of Lord

Macaulay’s statement, especially as Mr. Jeaffreson himself adds in a

note, ‘Among advocates in Charles II’s reign, a professional income of

a thousand a year signified a practice and popularity that placed a

barrister in the second rank of the unquestionably successful followers

of the law. Somers was thought a fortunate and rising counsellor when

he enjoyed Lord Chancellor Nottingham’s favour, and made 700_l._ a

year.’ But the credit of the second part of Lord Macaulay’s statement

is certainly shaken by an examination of the fee-book of Sir Francis

Winnington, who was Solicitor-General to Charles II. In 1673 he

received 3,371_l._; in 1674, 3,560_l._; and in 1675--the first year of

his tenure of the Solicitor-General’s office--4,066_l._, of which only

429_l._ were office fees. Lord Keeper North made 7,000_l._ a year as

Attorney-General, and his brother, Roger, gives an amusing description

of his mode of bestowing the fees in three skull-caps--one for the

gold, one for crowns and half-crowns, and one for small money. In those

golden days the barrister did not open his mouth until his fingers had

closed on his client’s money, and credit was unknown in transactions

between counsel and attorney. A good deal of base money used, however,

to be taken on these occasions, and Bishop Burnet gravely praises Sir

Matthew Hale for his justice and goodness in not putting this flash

coin again into circulation. The worthy Judge’s virtue was emphatically

its own reward. He had gathered together a vast heap of this spurious

coin, when some thieves broke into his house, and contentedly carried

it off, believing that they were helping themselves to his hoarded

treasure. The practice of the Bar does not appear to have become more

lucrative in the reign of George II. than it was many years earlier.

During the last year of his tenure of the Solicitor-Generalship,

Charles Yorke earned 7,322_l._ Lord Eldon’s fee-book shows a great

advance. In 1794, he received 11,592_l._; in 1795, 11,149_l._; in 1796,

12,140_l._ Previous to Erskine’s elevation to the Bench, he received on

an average twelve special retainers in the year, from which he gained

at least 3,600_l._ Elsewhere (_Times Review_) we read of Erskine--‘It

is four and a half years since he was called and in that time he has

cleared 8,000_l._ or 9,000_l._, besides paying his debts, obtaining a

silk gown, and a business of at least 3,000_l._ a year.’”[35]

In bringing this chapter to a close, it seems only fitting again to

lay stress on the desirability of entitling a barrister to receive a

client without the obligatory intervention of a third person, namely,

a solicitor. An absurd anomaly, _the legal assumption that every man

knows, or is expected to know, the law_, would perhaps be somewhat

nearer fulfilment, if counsel were less unapproachable than they are

to-day.

[Mr. Chester wishes it to be clearly understood that his suggestion

of a direct approach to counsel is only put forward because he has

witnessed the success of the system in other countries--otherwise, he

would not venture to mention such an innovation. In this chapter, at

any rate, he desires to assume the _rôle_ of commentator rather than

that of an advocate.]

FOOTNOTES

[34] In the current press for March 20, 1911, there is the following

report, under the heading, “_Solicitors Struck off the Rolls_: King’s

Bench Divisional Court.--Justices Ridley, Darling and Channell.... Upon

the application of Mr. T. Payne, appearing for the Law Society, the

following solicitors were ordered to be struck off the Rolls:--Patrick

Burke, formerly of Bridge Street, Manchester; Francis Ernest Swann,

formerly of Fleet Street; and John Milton Kerr, formerly of Halifax....

It appeared that the statutory committee found Patrick Burke guilty of

misappropriation of clients’ money, including £1,000 out of £2,250,

handed to him by the Mother Superior of the Order of St. Joseph,

for the purpose of purchasing a house at Stafford for the sisters

upon their expulsion from France. The papers were sent to the Public

Prosecutor and a warrant was issued, but the solicitor could not be

found.... Francis Ernest Swann, on October 11, 1910, was sentenced

to five years’ penal servitude at the Central Criminal Court for the

fraudulent conversion of £1,700.... John Milton Kerr was convicted at

Leeds in November last of the fraudulent conversion of £1,976, and

sentenced to three years’ penal servitude.”

[35] _Legal Anecdotes_, edited by John Timbs.

CHAPTER XII

THE MORALITY BILL, ACCESSION AND CORONATION DECLARATIONS AND OATHS

I. THE MORALITY BILL

The Morality Bill, so designated because of its peculiar provisions,

contains some instructive reading. The most questionable provision in

the Bill is formed by a portion of sub-section (1), section 9. “If any

woman, who is a prostitute or a reputed prostitute, shall permit any

boy to have connection with her ... such woman shall be guilty of a

misdemeanour, and shall be liable upon conviction on indictment to be

imprisoned, with or without hard labour, for any term not exceeding two

years.” “Boy” for the purposes of the Bill means a male under the age

of nineteen years.

Such a provision could scarcely be conceived in any country other than

England or America. No doubt it is well-meant, but in the complex state

of society in towns, it is almost incapable of being put into practical

effect.

That part of subsection (1), section 19, which makes it punishable

for any person to favour or encourage the connection between a boy and

a prostitute, is quite above reproach. The Bill in its other provisions

is largely protective and meritorious. Its punitive side is also

justified: indeed, it is scarcely harsh enough towards the man who

lives on the immoral earnings of a woman: “Any person who knowingly

lives, either wholly or in part, upon the immoral earnings of a woman

(subsection (1), section 13), shall be guilty of a misdemeanour, and

shall be liable, if a male, to be imprisoned upon summary conviction

for any term not exceeding six months, with or without hard labour,

or upon conviction on indictment for any term not exceeding twelve

months, with or without hard labour.... Where a person is convicted

on indictment of an offence under this section, it shall be lawful

for the Court to direct that he be subject to the supervision of the

police under section eight of the Prevention of Crimes Act, 1871,

notwithstanding that he has not been previously convicted of crime.”

The summary conviction limit of six months is inadequate: so, likewise,

is the limit of twelve months fixed for the punishment on conviction on

indictment. The offence is one of the worst under the criminal law from

the human standpoint; it is not only _mala quia prohibita_ but _mala

per se_ in the public mind. The scoundrels who traffic in prostitution

well deserve a greater punishment than the Bill suggests. “Prostitutes”

in this sense does not mean the street women of the West End so much

as those girls who are lured from the Continent, on a promise of high

wages in London milliners’ shops, and then forced for a time at least

by the women who import them to frequent certain so-called theatrical

resorts. Many of these girls are not naturally vicious; they are

merely the prey of the older women who work in conjunction with male

supporters, some of whom take as much as thirty or forty pounds a week

from the earnings of one of the victims. The men in question advise on

and direct matters through the older women: as a matter of business,

when the necessity arises, they also supply persons to perform illegal

operations. To give an illustration of the _modus operandi_, generally,

it will be necessary to narrate a passage from the history of one

of these atrocious enterprises. _A_, a Paris shop-girl, aged 19,

good-looking and well-formed, was induced to come to this country by

_B_, a South American harlot established in London. The inducement was

a very good wage at a West End shop where the English language could

easily be picked up, according to report. _A_, a perfectly respectable

girl, agreed to come to London with _B_, and shortly afterwards she

found herself in a flat in Oxford Street (the rent of which was about

£7 a week). She was kept at the flat until some evening dresses had

been obtained, and then she was taken to a certain variety theatre

by _B_. The girl could speak no English and her character was not

self-assertive or strong. She knew nothing about French consuls or the

English police, and, then, too, her ordinary wearing apparel had been

taken from her by _B_. She, therefore, found herself on this first

occasion, in the brightly-lighted promenade of a “music hall,” with

many well-dressed men and women in her immediate vicinity. _B_ was

near at hand to keep a watchful eye upon her. A patron of the place,

one who was fluent with his French, soon made off with her to the

flat in Oxford Street, to which he had been directed by _B_. (_A_ was

herself incapable of supplying the address to the cabman). The girl

then explained that she had had her ordinary clothes taken from her

by _B_, that _B_ kept a man in the background, and that she, _A_, was

entirely helpless. At a subsequent meeting, _A_ explained that _B_ took

possession of about forty pounds a week, from her, and that the pretext

was that it was being banked! The only clothes to which she, _A_, had

access were evening gowns; she was kept without money, too, under

constant surveillance, amid conditions which she did not like. The

final scene was enacted a few months later, when the person, to whom

_A_ had confided her story, went to the flat and found her missing. Her

place had been filled by a newly-arrived _girl of fifteen_, procured

by the same process from a Paris shop. On persistent enquiry, _A_ was

found in another room suffering from the consequences of an illegal

operation, which had been forced upon her by the joint efforts of _B_

and the male director of affairs.

A maximum penalty of twelve months’ hard labour for a scoundrel of the

stamp of _B’s_ “lover” is most disproportionate to the offence. Of

course, such a man would be liable to a greater penalty, if a girl of

fifteen years of age were brought into the case. But on the other facts

alone, the law should be less merciful.

Section 10, of the Morality Bill, is worth transcribing in full.

“(1) If any male person shall have connection with a woman who is to

his knowledge his granddaughter, sister, daughter, niece, or mother,

he shall be guilty of felony, and shall be liable upon conviction on

indictment to be imprisoned, with or without hard labour, for any term

not exceeding two years, or be kept in penal servitude for any term not

less than three years and not exceeding seven years: Provided that if

it is alleged in the indictment and proved that the girl was, at the

time of the commission of the offence, under the age of sixteen years,

the maximum term of penal servitude which the court may inflict shall

be ten years.

“(2) If any male person shall attempt to have connection with a woman

who is to his knowledge his granddaughter, sister, niece, or mother, he

shall be guilty of a misdemeanour, and shall be liable upon conviction

on indictment to be imprisoned, with or without hard labour, for any

term not exceeding two years.

“(3) If any woman, not being a girl, shall permit her grandfather,

father, brother, uncle, or son to have connection with her (knowing

him to be her grandfather, father, brother, uncle, or son, as the case

may be) she shall be guilty of a felony, and shall be liable upon

conviction on indictment to be imprisoned, with or without hard labour,

for any term not exceeding two years, or to be kept in penal servitude

for any term not less than three years, and not exceeding seven years.”

Where the word “mother” is used in the first part of subsection

(1), at sight it appears careless to put, nearer the end of the

same subsection, “provided that if it is alleged in the indictment

and proved that _the girl was, at the time of the commission of the

offence, under the age of sixteen years,” etc._

The “Memorandum” preceding the Morality Bill contains an epitome of the

whole conception. “The general object of this Bill is to substitute

for the Criminal Law Amendment Act, 1885, the Vagrancy Act, 1898, the

Punishment of Incest Act, 1908, the Obscene Publications Act, 1857,

the Indecent Advertisements Act, 1889, and certain other enactments,

a comprehensive measure which shall materially strengthen the law

relating to offences against morality and decency.... The chief

proposals of the Bill are:--

“1. To raise ‘the age of consent’ to nineteen, the full offence to be

felony, and the maximum punishment to be--(_a_) if the girl is any age

under sixteen, penal servitude for ten years; (_b_) if the girl is over

sixteen, penal servitude for five years.

“2. To protect all feeble-minded women and girls, the full offence to

be felony, the attempt a misdemeanour, and the maximum punishment to be

for the felony penal servitude for five years, and for the misdemeanour

imprisonment for two years.

“3. To make it felony to obtain, and a misdemeanour to attempt to

obtain, consent by any inducement or threat in connection with

employment, the maximum punishment to be for the felony penal servitude

for five years, and for the misdemeanour imprisonment for two years.

“4. To make it a misdemeanour for any woman or girl of abandoned

character to permit a boy under nineteen years of age to have immoral

relations with her, or for any person to favour or encourage such

relations, the maximum punishment to be imprisonment for two years.

“5. To make the full offences specified in section two, which relates

to procuration, of the Criminal Law Amendment Act, 1885, felonies, for

which the maximum punishment is to be penal servitude for five or ten

years, according to the age of the girl; and to extend the protection

against procuration, and attempted procuration, now enjoyed by girls of

good character under the age of twenty-one--(_a_) to all women of good

character; (_b_) to all feeble-minded women and girls, whatever their

character; (_c_) to all girls under the age of nineteen, whatever their

character.

“6. To make the offences specified in subsections (1) and (2) of

section three of the Criminal Law Amendment Act, 1885 (_viz._,

procuration by threats or false pretences, etc.), felonies for which

the maximum punishment is to be penal servitude for five or ten years,

according to the age of the girl; and to make an attempt to procure by

false pretences a misdemeanour for which the maximum punishment is to

be imprisonment for two years.

“7. To make the offence specified in subsection (3) of section three

of the Criminal Law Amendment Act, 1885 (_viz._, the administration of

drugs for an immoral purpose) felony for which the maximum punishment

is to be penal servitude for ten years.

“8. To make the offences specified in sections six, seven and eight

of the Criminal Law Amendment Act, 1885 (_viz._, the offences of

permitting defilement on premises, of abduction for an immoral purpose,

and the unlawful detention for such purpose) felonies for which the

maximum punishment is to be penal servitude for five or ten years,

according to the age of the girl.

“9. To make an offence under section eleven of the Criminal Law

Amendment Act, 1885--(_a_) when committed with a boy under the age of

sixteen years, felony for which the maximum punishment is to be penal

servitude for ten years; (_b_) when committed with a person over that

age, felony punishable with penal servitude for five years.

“10. To make the keeping of premises for immoral purposes a

misdemeanour punishable summarily with a fine of 50_l._ and

imprisonment for six months, or upon conviction on indictment with a

fine of 200_l._ and imprisonment for two years.

“11. To make further provision for the suppression of indecent,

immoral, and grossly offensive literature, pictures, advertisements,

etc., the offence to be a misdemeanour punishable upon summary

conviction with a fine of 50_l._ and imprisonment for six months, or

upon conviction on indictment with a fine of 100_l._ and imprisonment

for twelve months. Further powers are given to the Postmaster-General.

“12. To make it a misdemeanour punishable upon summary conviction

with imprisonment for six months, or upon conviction on indictment

with imprisonment for twelve months, for any male person knowingly to

live upon the immoral earnings of a woman or girl; and to make it a

misdemeanour punishable upon summary conviction with imprisonment for

six months for any woman to do so. (The expression ‘immoral earnings’

is defined to mean the earnings of prostitution or of habitual

immorality.)

“13. To make it a misdemeanour punishable summarily with imprisonment

for six months, or upon conviction on indictment with imprisonment for

twelve months, for a male person to solicit persistently for an immoral

purpose in a street or public place.

“14. To make ordinary cases of soliciting punishable summarily with a

fine of 10_l._, or with imprisonment for two months without the option

of a fine, or upon a second or subsequent conviction with a fine of

30_l._, or with imprisonment for six months without the option of a

fine.

“15. To extend to an amended form the provisions of the Children’s

Act, 1908, relating to persons having the custody of girls, and either

causing their seduction or not exercising due care, to the cases of

girls between the ages of sixteen and nineteen years.

“16. To strengthen the provisions of the Children’s Act, 1908, relating

to the punishment of parents and others who allow children and young

persons to reside in or frequent premises kept for immoral purposes;

and to extend those provisions to the protection of persons between the

ages of sixteen and nineteen.

“17. To enable a person who is convicted on indictment of--(_a_)

keeping premises for immoral purposes; or (_b_) living on a woman’s

immoral earnings, being a male; or (_c_) persistently soliciting, being

a male; or (_d_) selling indecent literature, etc., to be placed under

police supervision, notwithstanding that such person has not been

previously convicted of crime.

“18. To require courts to recommend for expulsion aliens over the age

of nineteen who are convicted of certain offences.

“19. To restrict the punishment for rape to penal servitude for not

more than ten years, except under certain aggravated circumstances,

when the maximum term is to be fifteen years.

“20. To restrict the punishment for offences under sections fifty-eight

and sixty-one of the Offences against the Person Act, 1861, to penal

servitude for not more than ten years, and for offences under section

sixty-two of that Act to penal servitude for not more than seven years.

“21. To re-enact the Punishment of Incest Act, 1908; to extend its

range; and to make such other amendments as are required to render its

provisions consistent with the above proposals, the full offence to be

felony.

“22. To restrict the punishment of young offenders for any of the above

offences (including rape, incest, etc.) by providing--(_a_) that no

person under the age of twenty-one shall be liable to a longer term of

penal servitude than seven years, unless he is guilty of rape under

certain aggravated circumstances, in which case he is to be liable to

penal servitude for ten years; and (_b_) that no person under the age

of eighteen shall be liable to penal servitude.

“23. To render an indecent assault upon a person under the age of

nineteen years, cognizable summarily with the consent of the accused,

but to increase the maximum term of imprisonment which a court of

summary jurisdiction may, under those circumstances, inflict, to six

months. (_Cf._ a similar provision in the Children’s Act, 1908.)

“24. To enable the court to be cleared (representatives of the press

being allowed to remain) during proceedings relating to offences

against morality or decency, and to enable the worst of such cases to

be tried _in camera_.

“25. To repeal--(_a_) The Criminal Law Amendment Act, 1885; (_b_) The

Vagrancy Act, 1898; (_c_) The Punishment of Incest Act, 1908; (_d_)

Sections sixteen, seventeen, eighteen, one hundred and twenty-eight

(2), of the Children Act, 1908, and the Second Schedule of that

Act; (_e_) The Obscene Publications Act, 1857; (_f_) The Indecent

Advertisements Act, 1889; (_g_) Other enactments.”

The comprehensive nature of the Morality Bill can scarcely be doubted

after a perusal of the foregoing _Memorandum_. There is no question

whatever, the bulk of the provisions are good. But the penal offence

constituted by a prostitute’s intercourse with a boy under nineteen

seems somewhat far-fetched. The intention may be good, though it would

look peculiar as a section of a statute. There is no need to comment

further on the subject here.

Prior to going through the Bill, the writer had intended suggesting

the insertion in it of the following provision: “In any case where it

has been proved that a girl was induced to sexual intercourse on the

promise or understanding that a theatrical or other engagement was

to be the result of such intercourse, or where a theatrical or other

engagement has already been obtained and is to be continued only on

submission to an act of sexual intercourse with a manager, proprietor,

or other person in authority, then such person shall be guilty of a

misdemeanour punishable with imprisonment with or without hard labour

for any term not exceeding twelve months.” On examining the contents of

the Bill, he, however, found the contingency provided for in section 8.

“8.--(1) If any male person shall obtain, or if any person of either

sex shall aid or abet any male person in obtaining, connection with any

woman by any inducement or threat in connection with her employment

in any capacity, or with any attempt on her part to obtain employment

in any capacity, such person shall be guilty of felony, and shall

be liable upon conviction on indictment to be imprisoned, with or

without hard labour, for any term not exceeding two years, or to be

kept in penal servitude for any term not less than three years and not

exceeding five years. (2) If any male person shall attempt to obtain,

or if any person of either sex shall aid or abet any male person in

attempting to obtain, connection with any woman by any inducement or

threat in connection with her employment in any capacity, or with any

attempt on her part to obtain employment in any capacity, such person

shall be guilty of a misdemeanour, and shall be liable upon conviction

on indictment to be imprisoned, with or without hard labour, for any

term not exceeding two years.”

There are two classes of enterprise which are peculiarly associated

with what may be termed submissive immorality for the purpose of

legitimate employment. In the one class the victim’s downfall finds

its beginning in connection with theatrical aspirations, whereas in

the other class it is indirectly brought about by the demands of

fashion. There is reason to believe that a well-formed, good-looking

girl, who is anxious to get on the stage will often only accomplish her

desire by first submitting to sexual intercourse with her prospective

employer. This is not always so, naturally, but it is a general custom

in some quarters. In many, if not in most cases, submission means the

seduction of a previously virtuous girl. The condition precedent to

a theatrical engagement, more particularly on the “musical comedy”

stage, is, therefore, of such a character that the harshest measures

are needed to put it down. The whole process is iniquitous. On the one

hand, there is an eager, inexperienced young woman, foolish enough

to want to go on the stage, and on the other, there is a calculating

scoundrel who regards her as his certain prey. The second important

variation to the offence of carnally knowing a woman, through the

influence of her employment, frequently arises in West End milliners’

shops. The employment by male _costumiers_--that is to say, at the

most fashionable shops--of attractive young women, who, for their

figures and appearance, are chosen as models to display Paris hats and

costumes, gives rise to a whole series of iniquitous conditions which

would shame the most indecent novel. Models of the sort referred to are

generally subjected to much the same treatment as the “musical comedy”

aspirants, but there is this difference--that the former usually obtain

the engagement before the “cloven hoof” of their employer begins to

show itself.

The searchlight of vigilance would consume itself were it applied to

half the subjects which pass through one’s mind as suitable for attack.

That is to say, in connection with submissive immorality for the

purpose of legitimate employment.

II. ACCESSION AND CORONATION DECLARATIONS AND OATHS

This little work would, perhaps, be incomplete without some mention of

the Accession Declarations and Coronation Oaths.

It is first proposed to incorporate here the “Declarations of Heads of

States” which declarations were collected and ordered to be printed by

the House of Commons in May, 1901.

GREAT BRITAIN AND IRELAND.

I. _Declaration made by the King, on his Accession, in the House of

Lords, pursuant to section 1 of the Bill of Rights 1 W. & M. sess. 2,

c. 2_.

I, EDWARD, do solemnly and sincerely, in the presence of God,

profess, testify, and declare, that I do believe that in the

Sacrament of the Lord’s Supper there is not any transubstantiation of

the elements of bread and wine into the body and blood of Christ at

or after the consecration thereof by any person whatsoever; and that

the invocation or adoration of the Virgin Mary or any other Saint,

and the sacrifice of the Mass, as they are now used in the Church

of Rome are superstitious and idolatrous, and I do solemnly, in the

presence of God, profess, testify, and declare, that I do make this

declaration and every part thereof in the plain and ordinary sense

of the words read unto me as they are commonly understood by English

Protestants without any evasion, equivocation, or mental reservation

whatsoever, and without any dispensation already granted me for this

purpose by the Pope or any other authority or person whatsoever, or

without any hope of such dispensation from any person or authority

whatsoever, or without thinking that I am or can be acquitted before

God or man, or absolved of this declaration or any part thereof

although the Pope or any other person or persons or power whatsoever

should dispense with or annul the same, or declare that it was null

and void from the beginning.

II. _Oath with regard to the Church of Scotland, taken by the King at

his first Council, on 23rd January, 1901._

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