Ireland, Defender of the Faith, do faithfully Promise and Swear that
I shall inviolably maintain and preserve the settlement of the true
Protestant Religion, with the Government, Worship, Discipline, Rights
and Privileges of the Church of Scotland as established by the Laws
made there in prosecution of the Claim of Right, and particularly
by an Act, intituled An Act for securing the Protestant Religion
and Presbyterian Church Government, and by the Acts passed in the
Parliament of both Kingdoms for Union of the two Kingdoms.
SO HELP ME GOD.
EMPIRE OF GERMANY.
There is no provision in the constitution of the German Empire for an
oath regarding the constitution on the part of the German Emperor; nor
does the constitution contain provisions respecting the making of a
promise on oath or of other solemn declarations by the Emperor. On the
other hand, the King of Prussia, in accordance with Article 54 of the
Charter of the Constitution for the State of Prussia, in the presence
of the United Chambers of the Prussian Diet, makes a promise on oath
“to keep the constitution of the Kingdom fixed and inviolable, and to
govern in accordance with it and with the laws.”
UNITED STATES.
The oath or Affirmation taken by the President of the United States
before the entrance upon the execution of his office is prescribed by
the Constitution of the United States (Article II., section 1), and is
as follows:--
“I do solemnly swear (or affirm), that I will faithfully execute the
office of President of the United States, and will, to the best of my
ability, preserve, protect and defend the Constitution of the United
States.”
FRANCE.
The President of the French Republic takes no Oath on the assumption of
office.
AUSTRO-HUNGARY.
The Emperor on his Accession takes the Solemn Oath in the presence of
both houses of the Reichsrath--
“To maintain the inviolability of the fundamental laws of the Kingdoms
and Provinces represented in the Reichsrath and to rule in accordance
with these and the common laws of the Empire.”
The Oath taken by the present Emperor as King of Hungary:
“We, Francis Joseph I., by the Grace of God, etc., as Hereditary and
Apostolic King of Hungary and its Dependencies, swear by Almighty
God, by the Virgin Mary, and by all the Saints of God, to maintain
the Churches of God, the municipal liberties of Hungary and its
Dependencies, as well as the ecclesiastical and lay inhabitants of
those states of every rank, in their rights, prerogatives, freedom,
privileges, laws, in their ancient, good and approved customs; to see
that justice is done all: to maintain intact rights, constitution,
and the legal independence and territorial integrity of Hungary
and its Dependencies: to respect the laws of the late King Andreas
II., not to alienate nor curtail the dominion of Hungary and its
Dependencies, nor whatever belongs to these countries by right or
title, but as far as possible to increase and extend them; and that
we will do all that we are justly able to do for the common welfare,
glory, and increase of these countries. So help us God and all His
Saints.”
A statute of 1910, the Accession Declaration Act, “to alter the form
of the Declaration required to be made by the Sovereign on Accession,”
provides for the use of the following Oath by the King:--
“I (_here insert the name of the Sovereign_) do solemnly and
sincerely in the presence of God profess, testify, and declare that
I am a faithful Protestant, and that I will, according to the true
intent of the enactments which secure the Protestant succession to
the Throne of my Realm, uphold and maintain the said enactments to
the best of my powers according to law.”
It is not uninteresting to learn the official position of the Sovereign
as defined by statute (24 Henry VIII. c. 12.):
“Whereby divers sundry old authentic histories and chronicles, it
is manifestly declared and expressed that this realm of England
is an empire, and so hath been accepted in the world, governed by
one supreme head and King, having dignity and royal estate of the
Imperial Crown of the same:
“Unto whom a Body Politic, compact of all sorts and degrees of
people, divided in terms by names of spiritualty and temporalty, been
bounden and owen to bear, next to God, a natural and humble obedience.
“He being also institute and furnished by the goodness and suffrance
of Almighty God with plenary, whole, and entire power, pre-eminence,
authority, prerogative, and jurisdiction, to render and yield
justice and final determination to all manner of folk, resiants or
subjects within this his realm, in all causes, matters, debates, and
contentions happening to occur, insurge, or begin within the limits
thereof, without restraint or provocation to any foreign princes or
potentates of the world.”
The monarch--Henry VIII.--in whose reign the above was passed swore a
Coronation Oath[36] little different to the Oaths of Charles II. and
James II., though the Reformation came in between. The Oath taken by
Charles II. at his Coronation was worded thus:--
“Sir, will you grant and keep, and by your oath confirm to the
people of England, the laws and customs to them granted by the Kings
of England your lawful and religious predecessors, and namely the
laws, customs, and franchises, granted by the glorious King, St.
Edward, your predecessor, according to the laws of God, the true
profession of the Gospel established in this Kingdom, agreeable to
the prerogative of the Kings thereof, and the ancient customs of this
realm?”
_King_: “I grant and promise to keep them.”
“Sir, will you keep peace and godly agreement (according to your
power) both to God, Holy Church, the clergy, and the people?”
_King_: “I will keep it.”
“Sir, will you (to your power) cause law, justice, and discretion in
mercy and truth to be executed to your judgment?”
_King_: “I will.”
“Sir, will you grant to hold and keep the laws and rightful customs
which the commonalty of this your Kingdom have: will you defend and
uphold them to the honour of God, so much as you lieth?”
_King_: “I grant and promise so to do.”
The Coronation Oath of His Majesty King George V.[37] conformed to the
requirements of the William and Mary legislation--which has regulated
the subject ever since its passage, with trifling variations.
The late King’s Accession Declaration, which gave religious offence
to many of his Majesty’s subjects, has been abated, in pursuance of
section 1, Accession Declaration Act, 1910.
“The declaration to be made, subscribed, and audibly repeated by the
Sovereign under section 1 of the Bill of Rights and section 2 of the
Act of Settlement shall be that set out in the Schedule to this Act
instead of that referred to in the said sections.”[38]
FOOTNOTES
[36] CORONATION OATH OF HENRY VIII
“Will ye graunte and kepe to the people of England, the lawes and
the custumes to theym, as of old tyme rightfull and deuoute Kings
graunted, and the same ratefye and conserne by your othe and the
spiritual lawes, custumes, and libertees graunted to the clergy and
people by your noble predecessors and glorious King Seint Edward?”
_The King shall answer_: “I graunte and promytte.”
“Ye shall kepe after your strength and power to the Church of God, to
the clergy and the people, hoole pees and goodely concorde.”
_The King shall answer_: “I shall kepe.”
“Ye shall make to be done after your strength and power equall and
rightfull justice in all your Domes and Judgements, and discrecion
with mercy and trouthe.”
_The King shall answer_: “I will do.”
“Do ye graunte the rightfull lawes and custumes to be holden, and
promytte after your strength and power such lawes, as to the honor
of God shall be chosen by your people, by you to be strengthend and
defended?”
_The King shall answer_: “I graunte and promytte.”
[37] See Appendix F.
[38] _Vide supra._
APPENDIX A
DIVORCE
The following extracts from the evidence of Earl Russell and from the
evidence of Mr. Atherley-Jones, K.C., before the Divorce Commission
(December 19th, 1910), are not without some interest. They were
discovered in _The Times_ report by accident, after the present
author’s chapter on divorce had been written.
“Lord Russell, who was the first witness, said he had been interested
in the question of divorce since 1890. He had studied the history of
the question, the earlier part of which was naturally ecclesiastical;
but as Parliament, in his opinion, was not concerned in legislation
with ecclesiastical views he did not propose to go into them. In
his view the State had no more right to dictate to him or his
fellow-citizens what should be the nature of contracts of marriage
from an ecclesiastical point of view than it had to deal with the
education of his children, with the exercise of the franchise, or
with other matters from an ecclesiastical point of view.
“The existing law suffered from three great defects:--
“(1) The premium placed upon adultery and the advantages given to
those who are willing to commit it: (2) the practical denial of
divorce to the poor; and (3) the provision of an illusory remedy in
many cases of matrimonial hardship, such remedy itself being directly
provocative of further adultery. In the case of the poor, the
petitioner might be in law fully entitled to his remedy, but unless
he could find a sum varying from £30 to £70 he must go without. This
sum to be spent in one lump was probably out of reach of four-fifths
of the husbands and nine-tenths of the wives of the country. The
proceeding _in formâ papueris_ did not adequately meet the case. To
his mind the obvious remedy was to give jurisdiction to the County
Courts, manned by able Judges who habitually tried cases infinitely
more difficult than those of divorce. In the vast majority of cases
the evidence would be in the locality of the County Court, thus
reducing the expense of witnesses. He supposed there should be some
limit of income--say £500 a year--and he thought it would be fair to
prohibit a petitioner in the County Court from seeking damages.
“The remedy of judicial separation had been extended and kept alive
to satisfy the feeling that something ought to be done to protect the
feelings of husbands and wives while not offending the ecclesiastical
conscience. To his mind, JUDICIAL SEPARATION WAS A WICKED PROVISION
OF THE LAW, WITH A VERY HIGH PROBABILITY OF ADULTERY BY THE SEPARATED
PARTIES.
“The vexed question of divorce appeared to have slumbered for about
50 years. In May, 1902, he introduced a Bill in the House of Lords to
increase the causes for divorce, to assimilate the practice of the
Divorce Court to some extent to that of other divisions of the High
Court, TO RELIEVE POOR PEOPLE BY ENABLING THEM TO BRING THEIR SUITS
IN THE COUNTY COURT, and TO PROVIDE FOR LEGITIMATION BY SUBSEQUENT
MARRIAGE and for marriage with the deceased wife’s sister, afterwards
dealt with in a separate Bill.
“_The Chairman._--Would you recapitulate the grounds which you then
proposed?
“The witness said the grounds, in addition to adultery, were:--That
since the marriage the other party to the marriage has been guilty of
cruelty to the petitioner; that the other party to the marriage is
undergoing penal servitude for a term of not less than three years;
that the other party to the marriage has during the year preceding
the presentation of the petition been found or certified to be of
unsound mind under the Lunacy Act, 1890; that during the three
years preceding the presentation of the petition the parties to the
marriage have lived apart, and that throughout that period either of
the parties did not intend to resume cohabitation; that during the
year preceding the presentation of the petition the parties to the
marriage have lived apart, and that the other party concurs in the
petition.
“He introduced three other Bills on a smaller scale providing for
divorce in the case of desertion in 1903, 1905, and 1906. The first
and second were unanimously rejected; three voted for the third; the
Government whips told against the fourth, and it therefore received
no support.
“There was much to object to in the procedure of the Divorce Court.
He had heard no particular reason why pleadings in the Divorce Court
should be sworn to, but if it was agreed that people were thereby
debarred from launching baseless charges there was something to be
said for it. It ought not to be necessary to swear a jury where the
damages were agreed. The practice by which a wife could accuse a
woman of adultery and the Court could find her guilty without the
woman having notice of the proceedings or an opportunity of being
heard was indefensible. He thought only the decrees of the Court
with the names of the parties should be published. The suggestion
that publicity was a deterrent was open to a good deal of doubt. It
was a great hardship for a man or woman that all the details of an
unsuccessful charge of adultery should be published. Even though
acquitted, the damage done was irremediable. There was a growing
tendency on the part of certain newspapers to treat the Divorce Court
as the fountain head of sensational news.
“In considering legislation he refused to have regard to the
religious views of particular sects. He admitted marriage to be a
contract which affected not only the two parties to it, but the
community, and he considered that the community was bound to have
regard to the moral tendency of the marriage and divorce law and to
the interests of the children. Such expressions as ‘the sanctity
of marriage’ and “the sanctity of the home,” often used in this
connection, he regarded as having no particular meaning in the case
of adulterous homes or establishments where husband and wife had
long been separated. He suggested, therefore, that the test which
should be applied was whether any of the attributes of marriage
were still in existence between husband and wife. Where the spouses
had been separated for a term of years; where children had already
made their home with one or the other; and where no element of the
marriage tie remained except some financial relations and the legal
bond, he suggested that the law should step in, and, recognizing
the existing state of things, should sever the legal bond and
leave the parties free to create new homes. Since the decision of
“Jackson _v._ Jackson” the wife might leave her husband at the church
door, and unless one or other of the parties took advantage of the
privileges which the law reserved for adulterers, they would both
remain compulsory celibates for the rest of their lives. He still
thought the ideal state of the law would be that set out in the Bill
he presented to the House of Lords in 1902. English legislation,
however, always proceeded by piecemeal tentative advances, and
probably, therefore, the simplest form of legislation would involve
four advances:--(_a_) Equality of the sexes; (_b_) insanity a ground
of separation; (_c_) all judicial separation to be capable of being
turned into divorce _a vinculo_ on the motion of either party at the
expiration of two years; and (_d_) County Court jurisdiction.
“_Judge Tindal Atkinson._--Would you give no damages against the
co-respondent?
“_The Witness._--I think it rather a barbarous custom.
“Then you leave the co-respondent without punishment?--I do not think
you leave him without punishment. He has social exposure. I think it
is more desirable to give no damages than to suggest that a man can
get another’s wife by paying for her.
“In reply to Mr. Burt, the witness said he did not think the Assize
Courts a good alternative to the County Courts.”
EVIDENCE OF MR. ATHERLEY-JONES.
Mr. Atherley-Jones, K.C., M.P., said he prepared a Bill some years
ago dealing with divorce. He came to the conclusion that subject
to limitations the conditions which now enabled a person to obtain
judicial separation should thenceforward be able to obtain divorce _a
vinculo_. His view was that jurisdiction over certain areas might be
conferred upon Judges selected from the County Courts.
APPENDIX B
CORONERS
The functions of a coroner are not, of course, peculiarly confined
to death inquisitions. They extend to inquiries in connection with
treasure trove, though the infrequency of such inquiries naturally
helps to obscure the coroner’s dual _rôle_ from the general public. The
following paragraph supplies a recent instance of an inquiry in respect
of treasure trove:
AN INQUEST ON COINS
“The coroner for the Thorpe division of Suffolk is to hold an inquest
to decide between two claims for the coins which were recently found
on the shore at Thorpeness, Suffolk. The Treasury claim them as
buried treasure, and the Receiver of Wrecks claims them as having
been washed ashore.
“Two black cinerary urns containing bones, a red earthenware Roman
vessel, and a black earthenware vessel, barrel-shaped and of drinking
tumbler size, were discovered on Saturday. It is thought that the
site of an old Roman burial-ground has been found. Throughout
yesterday hundreds of people visited Thorpeness on foot and by cycle,
in motorcars, and on horseback.”--_Daily Mail_, April 10th, 1911.
* * * * *
The senseless character, which a coroner’s inquest can sometimes
assume, is well brought out in a South American mummy case of a dozen
years ago:
“This institution”--the office of the coroner--“which some affect
to consider moribund, seems on the contrary to exhibit both the fire
of youth and the dignity of old age; see the South American mummy
case (Aitken _v._ London and North Western Railway, _The Times_,
December 11, 1901). This was an action against the railway company
for damages for negligence in the carriage of a Peruvian mummy,
which was broken in transit from South America to Belgium. In April,
1899, the package, sent from Liverpool, and addressed to ‘Maison
de Melle, Belgium,’ had been opened at Broad Street. An inquest
was held--verdict, ‘That the woman was found dead at the railway
goods-station on April 15, and did die on some date unknown in some
foreign country, probably South America, from some cause unknown.
No proofs of a violent death are found. The body has been dried and
buried in some foreign manner, probably sun-dried and cave-buried,
and the jurors are satisfied that this body does not show any recent
crime in this country, and that the deceased was unknown and about
twenty-five years of age.’” (Mr. A. T. Carter, D.C.L.).
* * * * *
An interesting fiction, connected with death, at any rate, if not with
coroners, though at a somewhat later period it would have come within
their cognizance, arose through the provisions of William the Conqueror
for the protection of his Norman followers. For every one killed, a
fine was imposed upon the hundred in which the body was found. By the
reign of Henry I., every dead man was presumed to be French, unless his
Englishry could be proved.
“A very neat doctrine for Revenue purposes, as the records show, for
if a stranger is found dead, who can prove that he is English?” (Mr.
A. T. Carter, D.C.L.).
* * * * *
The following newspaper report merits some further publicity:
“At an inquest at Southwark, the need of an early operation in
urgent circumstances was emphasised, and a doctor urged that the
time had come for a reform of the law which makes it impossible to
undertake any operation on a grievously injured child until its
parents have been approached, persuaded, and their consent wrung from
them.... A schoolboy of nine, John Joseph Huggins, of Haddon House,
St. George’s Road, had been riding behind a van, according to the
account of another small boy, and had fallen off before another van,
of which a wheel had passed over his leg.
“Dr. Fritz Kahlenberg, of Guy’s Hospital, said that when the father
was told that an operation was necessary he demurred for some time,
but eventually gave his consent. The witness thought doctors should
be able to operate if it was absolutely necessary without waiting
for consent. Time was everything in many cases, and if consent had
first to be obtained a life might be sacrificed. At Guy’s Hospital
they endeavoured to get the parents’ consent, and, failing the
parents, the nearest of kin. Some ignorant people had an idea that
an operation was an experiment, made for the doctors’ amusement. In
this case the operation was performed at night, and the surgeons were
engaged until five in the morning.
“Asked by the coroner whether he had any suggestion to make, Dr.
Kahlenberg said he thought that in such cases it should be enough if
two or three doctors agreed on the necessity of an operation.
“The Coroner said that perhaps some members of Parliament would take
the matter up. Dr. Kahlenberg, he observed, was suggesting a very
serious change in the law.
“The inquiry was adjourned to enable the father to find witnesses of
his son’s accident.”
APPENDIX C
THE ROYAL MARRIAGES ACT, 1772 12 Geo. 3, c. 11
_An Act for the better regulating of the future Marriages of the Royal
Family_
MOST GRACIOUS SOVEREIGN,
Whereas your Majesty, from paternal affection to your own family,
and from your royal concern for the future welfare of your people,
and the honour and dignity of your crown, was graciously pleased to
recommend to your Parliament to take into their serious consideration,
whether it might not be wise and expedient to supply the defect of
the laws now in being, and by some new provision more effectually to
guard the descendants of his late Majesty King George the Second (other
than the issue of princesses who have married, or who may hereafter
marry, into foreign families), from marrying without the approbation
of your Majesty, your heirs and successors, first had and obtained,
we have taken this weighty matter into our serious consideration; and
being sensible that marriages in the royal family are of the highest
importance to the state, and that therefore the kings of this realm
have ever been entrusted with the care and approbation thereof, and
being thoroughly convinced of the wisdom and expediency of what your
Majesty has thought fit to recommend upon this occasion; we, your
Majesty’s most dutiful and loyal subjects, the lords spiritual and
temporal, and commons, in this present Parliament assembled, do humbly
beseech your Majesty that it may be enacted and be it enacted, etc.
1. No descendant of the body of his late Majesty King George the
Second, male or female (other than the issue of princesses who have
married, or may hereafter marry, into foreign families), shall be
capable of contracting matrimony, without the previous consent of his
Majesty, his heirs or successors, signified under the great seal and
declared in council (which consent, to preserve the memory thereof, is
hereby directed to be set out in the license and register of marriage,
and to be entered in the books of the Privy Council); and [that] every
marriage or matrimonial contract, of any such descendant, without such
consent first had and obtained, shall be null and void to all intents
and purposes whatsoever.
2. Provided always ... that in case any such descendant of the body
of his late Majesty King George the Second, being above the age of
twenty-five years, shall persist in his or her resolution to contract
a marriage disapproved of, or dissented from, by the King, his heirs
or successors; that then such descendant, upon giving notice to the
King’s Privy Council, which notice is hereby directed to be entered
in the books thereof, may, at any time from the expiration of twelve
calendar months after such notice given to the Privy Council as
aforesaid, contract such marriage; and his or her marriage with the
person before proposed, and rejected, may be duly solemnized, without
the previous consent of his Majesty, his heirs or successors; and such
marriage shall be as good, as if this Act had never been made, unless
both Houses of Parliament shall, before the expiration of the said
twelve months, expressly declare their disapprobation of such intended
marriage.
3. And ... every person who shall knowingly and wilfully presume to
solemnize or to assist or be present at the celebration of any marriage
with any such descendant, or in his or her making any matrimonial
contract, without such consent as aforesaid first had and obtained,
except in the case above mentioned, shall being duly convicted thereof,
incur and suffer the pains and penalties ordained and provided by the
Statute of Provision and Premunire made in the sixteenth year of the
reign of King Richard the Second.
APPENDIX D
EXECUTIONS
The accompanying letter from Mr. A. Chichele Plowden, one of the
Metropolitan Police Magistrates, appeared in _The Times_ for December
20, 1910.
EXECUTIONS
_To the Editor of The Times_
SIR,--The interesting letters which have lately appeared in
your columns on the above subject were bound sooner or later
to resolve themselves into the one question of really national
importance--_viz._, whether or not capital punishment by hanging is
to be the last word of our civilization in dealing with the crime of
murder.
It is to the credit of Sir Henry Smith, whose letter you published
on Friday, that he is quick to recognize that this is the only thing
that signifies. Nor can it be said that there is any ambiguity
whatever in his own views on the subject.
Sir Henry is quite clear that all sympathy with murderers, even
in exceptional cases where they “suffer terribly,” is thrown away.
Generally speaking, they suffer very little--less than many innocent
people who die in their beds. Nevertheless the rope remains as the
great deterrent. The rope it is that is anticipated with terror.
If this is, as I believe it to be, a correct summary of Sir Henry’s
views, perhaps you will allow me, as a confirmed disbeliever in the
efficacy of capital punishment, to make one or two comments, not the
less true because they must often have been made before. People,
of course, are at liberty to think and believe that there would be
more murders than there are if hanging were abolished; but except
from analogy with foreign countries, notably, perhaps, with France,
where capital punishment, after being abolished, has recently been
restored, there is absolutely no evidence, nor in the nature of
things can there be any, to show that the rope is a deterrent.
If there are any whom the fear of it has deterred from murder,
they are and must remain an unknown quantity. All we know, as
distinguished from conjecture, is that crimes for which capital
punishment used to be the penalty have sensibly diminished, and that
murders continue to afflict society in quite sufficient numbers to
unnerve the more timid members of the community--the fear of death
notwithstanding.
It is a popular fallacy to regard a murderer as the worst of
criminals. The real truth is that in many cases it is hardly fair to
describe him as a criminal at all. There is nothing inconsistent,
human nature being what it is, in a man of blameless antecedents
being driven in a moment of frenzy into committing an act of violence
from which his whole soul would recoil in his saner moments.
No one who has not been through the fire can tell what may be the
effect on his self-control of a long course of studied insults and
provocation on the part of a worthless wife against her husband
persevered in day by day, for months and even years at a stretch.
Sir Henry Smith, in his virtuous indignation with Crippen, makes no
allowance for desperate circumstances like these. He is angry with
Crippen on account of his coolness in the witness-box, which he calls
an outrage, and he apparently regards it as a distinct aggravation
of his conduct that he should have sworn to love and cherish at the
altar the wife whom he subsequently put to death.
It is somewhat amazing to me that considerations such as these should
weigh for a moment in any just appreciation of Crippen’s character.
They seem to me absolutely irrelevant.
What Crippen actually did, and for which he suffered death, was to
kill a wife whom he hated for the sake of a woman whom he loved.
Probably of all the murders that are committed under the sun, in one
country or another, there is no more common type of murder than this.
It was the irony of Crippen’s fate that he did not meet No. 2 until
after he had met No. 1. Had such been his good fortune he would
probably have lived a life not better nor worse than his neighbours,
and have enjoyed with the best of them the reputation of a contented,
law-abiding citizen.
It must not be supposed from these observations that, the law of the
land being what it is, Crippen deserved a lesser punishment than he
received. All I am concerned with is to dispute that any fear of his
fate by hanging had any effect on his mind or intentions when he
resolved upon the murder of his wife.
It is quite clear that the deterrent effect was _nil_, as it was
in the case of Dickman, of Cream, and the host of other murderers,
who, with a full appreciation that they may ultimately be hung,
have nevertheless not hesitated to do away with the lives of their
victims, and to run the risk.
I am convinced from such experience as I have had of Criminal Courts,
extending over many years, that what a man murderously inclined
really dreads is not death, but pain.
The spectre of death, though it can always be conjured up, is too
remote and shadowy to have much effect on the nerves of a man in the
enjoyment of a full and vigorous health. Not so with pain. There is
no imagination so dull that it cannot take in the terrors of the
“cat;” and I believe if such a punishment could be made part of the
sentence, even without abolishing capital punishment, the deterrent
effect would be unmistakable.
I think even Crippen’s courage, wonderful as it was, would have
quailed on that dark and wintry morning had he known that he would
have had to endure a flogging before he was hung. And had he been
asked which he feared most--the physical pain of the lash or the
death to follow--can any one doubt what his answer would have been?
I am, Sir, your obedient servant,
A. CHICHELE PLOWDEN.
Marylebone Police Court.
* * * * *
“The Home Secretary states in a printed reply to Mr. Palmer that of the
24 men and 4 women sentenced to death in 1910, 16 men were executed,
as compared with 27 men and 4 women sentenced to death in 1909, 19 men
being executed. In 1908, 23 men and 2 women were sentenced to death, 12
men suffering the extreme penalty. One man sentenced to death in 1908
was executed in 1909.” (_Daily Newspaper._)
APPENDIX E
AN ENGLISH LEGITIMATION BILL
Since the chapter on legitimation was written, the writer has come
across a House of Commons Bill, which substantially endorses his views
on the subject. It is as follows:--
_A Bill to Amend the Law of Husband and Wife_
A.D. 1910
WHEREAS it is expedient to amend the law of husband and wife:
Be it therefore enacted by the King’s most Excellent Majesty, by and
with the advice and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by the authority
of the same, as follows:--
_Power of wife to petition for divorce_
=1.= Notwithstanding anything in the Matrimonial Causes Act, 1857, or
any other Act contained, it shall be lawful for any wife to present
a petition to the Court praying that her marriage shall be dissolved
on the ground that since the celebration thereof her husband has been
guilty of adultery.
For the purposes of this section the expression “Court” shall mean
the Court for Divorce and Matrimonial Causes.
_Guardianship of children_
=2.= A wife shall be the joint guardian with her husband of any
children of the marriage, and, in every case arising under any
statute or otherwise, shall have an equal power with the husband in
any matter concerning their education, upbringing, or welfare.
In case of disagreement between the parties either party may apply
to the Court, who shall make such order as, having regard to all
the circumstances before it and to the general well-being of the
children, it shall think proper. There shall be no appeal from such
order except by leave of the Court, but the Court may at any time, at
the instance of either party, with or without hearing fresh evidence,
rescind or vary such order in such manner as it shall think proper.
_Children to be legitimised by marriage_
=3.= Marriage before and after _the passing of this Act_ shall
operate to legitimise any children previously born to the parties to
such marriage.
_Short Title_
=4.= This Act may be cited as the Marriage Law Amendment Act, 1910.
APPENDIX F
THE CRIMINAL APPEAL ACT, 1907
COURT OF CRIMINAL APPEAL
=1.= (1) There shall be a Court of Criminal Appeal, and the Lord
Chief Justice of England and eight judges of the King’s Bench
Division of the High Court, appointed for the purpose by the Lord
Chief Justice with the consent of the Lord Chancellor for such period
as he thinks desirable in each case, shall be the judges of that
court.
(2) For the purpose of hearing and determining appeals under
this Act, and for the purpose of any other proceedings under this
Act, the Court of Criminal Appeal shall be summoned in accordance
with directions given by the Lord Chief Justice of England with
the consent of the Lord Chancellor and the court shall be duly
constituted if it consists of not less than three judges and of an
uneven number of judges.
If the Lord Chief Justice so directs, the court may sit in two or
more divisions.
The court shall sit in London except in cases where the Lord Chief
Justice gives special directions that it shall sit at some other
place.
(3) The Lord Chief Justice, if present, and in his absence the senior
member of the court, shall be president of the court.
(4) The determination of any question before the Court of Criminal
Appeal shall be according to the opinion of the majority of the
members of the court hearing the case.
(5) Unless the court direct to the contrary in cases where, in the
opinion of the court, the question is a question of law on which it
would be convenient that separate judgments should be pronounced
by the members of the court, the judgment of the court shall be
pronounced by the president of the court or such other member of the
court hearing the case as the president of the court directs, and no
judgment with respect to the determination of any question shall be
separately pronounced by any other member of the court.
[39](6) If in any case the director of public prosecutions
or the prosecutor or defendant obtains the certificate of the
Attorney-General that the decision of the Court of Criminal Appeal
involves a point of law of exceptional public importance, and that it
is desirable in the public interest that a further appeal should be
brought, he may appeal from that decision to the House of Lords, but
subject thereto the determination by the Court of Criminal Appeal of
any appeal or other matter which it has power to determine shall be
final, and no appeal shall lie from that court to any other court.
(7) The Court of Criminal Appeal shall be a superior court of record,
and shall, for the purposes of and subject to the provisions of this
Act, have full power to determine, in accordance with this Act, any
questions necessary to be determined for the purpose of doing justice
in the case before the court.
(8) Rules of court shall provide for securing sittings of the Court
of Criminal Appeal, if necessary, during vacation.
(9) Any direction which may be given by the Lord Chief Justice under
this section may, in the event of any vacancy in that office, or in
the event of the incapacity of the Lord Chief Justice to act from any
reason, be given by the senior judge of the Court of Criminal Appeal.
=2.= There shall be a Registrar of the Court of Criminal Appeal (in
this Act referred to as the Registrar) who shall be appointed by
the Lord Chief Justice from among the Masters of the Supreme Court
acting in the King’s Bench Division, and shall be entitled to such
additional salary (if any), and be provided with such additional
staff (if any), in respect of the office of registrar as the Lord
Chancellor, with the concurrence of the Treasury, may determine.
The senior Master of the Supreme Court shall be the first Registrar.
RIGHT OF APPEAL AND DETERMINATION OF APPEALS.
=3.= A person convicted on indictment may appeal under this Act to
the Court of Criminal Appeal--
(_a_) against a conviction on any ground of appeal which involves a
question of law alone, and
(_b_) with the leave of the Court of Criminal Appeal or upon the
certificate of the Judge who tried him that it is a fit case
for appeal against his conviction on any ground of appeal
which involves a question of fact alone, or a question of
mixed law and fact, or any other ground which appears to the
court to be a sufficient ground of appeal, and
(_c_) with the leave of the Court of Criminal Appeal against the
sentence passed on his conviction unless the sentence is one
fixed by law.
=4.= (1) The Court of Criminal Appeal on any such appeal against
conviction shall allow the appeal if they think that the verdict of
the jury should be set aside on the ground that it is unreasonable
or cannot be supported having regard to the evidence, or that the
judgment of the court before whom the appellant was convicted should
be set aside on the ground of a wrong decision of any question of
law, or that on any ground there was a miscarriage of justice, and in
any other case shall dismiss the appeal.
Provided that the court may, notwithstanding that they are of opinion
that the point raised in the appeal might be decided in favour of the
appellant, dismiss the appeal if they consider that no substantial
miscarriage of justice has occurred.
(2) Subject to the special provisions of this Act, the Court of
Criminal Appeal shall, if they allow an appeal against conviction,
quash the conviction and direct a judgment and verdict of acquittal
to be entered.
(3) On an appeal against sentence the Court of Criminal Appeal
shall, if they think that a different sentence should have been
passed, quash the sentence passed at the trial, and pass such other
sentence warranted in law by the verdict (whether more or less
severe) in substitution therefor as they think ought to have been
passed, and in any other case shall dismiss the appeal.
=5.= (1) If it appears to the Court of Criminal Appeal that an
appellant, though not properly convicted on some count or part of the
indictment, has been properly convicted on some other count or part
of the indictment, the court may either affirm the sentence passed
on the appellant at the trial, or pass such sentence in substitution
therefor as they think proper, and as may be warranted in law by the
verdict on the count or part of the indictment on which the court
consider that the appellant has been properly convicted.
(2) Where an appellant has been convicted of an offence and the jury
could on the indictment have found him guilty of some other offence,
and on the finding of the jury it appears to the Court of Criminal
Appeal that the jury must have been satisfied of the facts which
proved him guilty of that other offence, the court may, instead of
allowing or dismissing the appeal, substitute for the verdict found
by the jury a verdict of guilty of that other offence, and pass such
sentence in substitution for the sentence passed at the trial as may
be warranted in law for that other offence, not being a sentence of
greater severity.
(3) Where on the conviction of the appellant the jury have found
a special verdict, and the Court of Criminal Appeal consider that
a wrong conclusion has been arrived at by the court before which
the appellant has been convicted on the effect of that verdict, the
Court of Criminal Appeal may, instead of allowing the appeal, order
such conclusion to be recorded as appears to the court to be in law
required by the verdict, and pass such sentence in substitution for
the sentence passed at the trial as may be warranted in law.
(4) If on any appeal it appears to the Court of Criminal Appeal that,
although the appellant was guilty of the act or omission charged
against him, he was insane at the time the act was done or omission
made so as not to be responsible according to law for his actions,
the court may quash the sentence passed at the trial and order the
appellant to be kept in custody as a criminal lunatic under the Trial
of Lunatics Act, 1883, in the same manner as if a special verdict had
been found by the jury under that Act.
=6.= The operation of any order for the restitution of any property
to any person made on a conviction on indictment, and the operation
in case of any such conviction, of the provisions of subsection (1)
of section twenty-four of the Sale of Goods Act, 1893, as to the
re-vesting of the property in stolen goods on conviction, shall
(unless the Court before whom the conviction takes place direct to
the contrary in any case in which, in their opinion, the title to the
property is not in dispute) be suspended--
(_a_) in any case until the expiration of ten days after the date
of conviction, and
(_b_) in cases where notice of appeal or leave to appeal is given
within ten days after the date of conviction, until the
determination of the appeal;
and in cases where the operation of any such order, or the operation
of the said provisions, is suspended until the determination of the
appeal, the order or provisions, as the case may be, shall not take
effect as to the property in question if the conviction is quashed on
appeal. Provision may be made by rules of court for securing the safe
custody of any property, pending the suspension of the operation of
any such order of the said provisions.
(2) The Court of Criminal Appeal may by order annul or vary any order
made on a trial for the restitution of any property to any person,
although the conviction is not quashed; and the order, if annulled,
shall not take effect, and, if varied, shall take effect as so varied.
PROCEDURE
=7.= (1) Where a person convicted desires to appeal under this Act to
the Court of Criminal Appeal, or to obtain the leave of that Court to
appeal, he shall give notice of appeal or notice of his application
for leave to appeal in such manner as may be directed by rules of
court within ten days of the date of conviction. Such rules shall
enable any convicted person to present his case and his argument in
writing instead of by oral argument if he so desires. Any case or
argument so presented shall be considered by the court.
Except in the case of a conviction involving sentence of death, the
time within which notice of appeal or notice of an application for
leave to appeal may be given, may be extended at any time by the
Court of Criminal Appeal.
(2) In the case of a conviction involving sentence of death or
corporal punishment--
(_a_) the sentence shall not in any case be executed until after
the expiration of the time within which notice of appeal or
an application for leave to appeal may be given under this
section, and
(_b_) if notice is so given, the appeal or application shall
be heard and determined with as much expedition as
practicable, and the sentence shall not be executed until
after the determination of the appeal, or, in cases where an
application for leave to appeal is finally refused, of the
application.
=8.= The judge or chairman of any court before whom a person is
convicted shall, in the case of an appeal under this Act against the
conviction or against the sentence, or in the case of an application
for leave to appeal under this Act, furnish to the Registrar, in
accordance with rules of court, his notes of the trial; and shall
furnish to the Registrar in accordance with rules of court a report
giving his opinion upon the case or upon any point arising in the
case.
=9.= For the purposes of this Act, the Court of Criminal Appeal may,
if they think it necessary or expedient in the interest of justice,--
(_a_) order the production of any document, exhibit, or other thing
connected with the proceedings, the production of which
appears to them necessary for the determination of the case,
and
(_b_) if they think fit order any witnesses who would have been
compellable witnesses at the trial to attend and be examined
before the court, whether they were or were not called at
the trial, or order the examination of any such witnesses
to be conducted in manner provided by rules of court before
any judge of the court or before any officer of the court or
justice of the peace or other person appointed by the court
for the purpose, and allow the admission of any depositions
so taken as evidence before the court, and
(_c_) if they think fit receive the evidence, if tendered, of
any witness (including the appellant) who is a competent
but not compellable witness, and, if the appellant makes an
application for the purpose, of the husband or wife of the
appellant, in cases where the evidence of the husband or wife
could not have been given at the trial except on such an
application, and
(_d_) where any question arising on the appeal involves prolonged
examination of documents or accounts, or any scientific or
local investigation, which cannot in the opinion of the
court conveniently be conducted before the court, order
the reference of the question in manner provided by rules
of court for inquiry and report to a special commissioner
appointed by the court, and act upon the report of any such
commissioner so far as they think fit to adopt it, and
(_e_) appoint any person with special expert knowledge to act as
assessor to the court in any case where it appears to the
court that such special knowledge is required for the proper
determination of the case;
and exercise in relation to the proceedings of the court any other
powers which may for the time being be exercised by the Court of
Appeal on appeals in civil matters, and issue any warrants necessary
for enforcing the orders or sentences of the court: Provided that in
no case shall any sentence be increased by reason or in consideration
of any evidence that was not given at the trial.
=10.= The Court of Criminal Appeal may at any time assign to an
appellant a solicitor and counsel or counsel only in any appeal or
proceedings preliminary or incidental to an appeal in which, in
the opinion of the court, it appears desirable in the interests of
justice that the appellant should have legal aid, and that he has not
sufficient means to enable him to obtain that aid.
=11.= (1) An appellant, notwithstanding that he is in custody, shall
be entitled to be present, if he desires it, on the hearing of
his appeal, except where the appeal is on some ground involving a
question of law alone, but, in that case and on an application for
leave to appeal and on any proceedings preliminary or incidental to
an appeal, shall not be entitled to be present, except where rules of
court provide that he shall have the right to be present, or where
the court gives him leave to be present.
(2) The power of the court to pass any sentence under this Act may be
exercised notwithstanding that the appellant is for any reason not
present.
=12.= It shall be the duty of the Director of Public Prosecutions
to appear for the Crown on every appeal to the Court of Criminal
Appeal under this Act, except so far as the solicitor of a
Government department, or a private prosecutor in the case of a
private prosecution, undertakes the defence of the appeal, and the
Prosecution of Offences Act, 1879, shall apply as though the duty of
the Director of Public Prosecutions under this section were a duty
under section two of that Act, and provision shall be made by rules
of court for the transmission to the Director of Public Prosecutions
of all such documents, exhibits, and other things connected with the
proceedings as he may require for the purpose of his duties under
this section.
=13.= (1) On the hearing and determination of an appeal or any
proceedings preliminary or incidental thereto under this Act no costs
shall be allowed on either side.
(2) The expenses of any solicitor or counsel assigned to an
appellant under this Act, and the expenses of any witnesses attending
on the order of the court or examined in any proceedings incidental
to the appeal, and of the appearance of an appellant on the hearing
of his appeal or on any proceedings preliminary or incidental to
the appeal, and all expenses of and incidental to any examination
of witnesses conducted by any person appointed by the court for the
purpose, or any reference of a question to a special commissioner
appointed by the court, or of any person appointed as assessor to the
court, shall be defrayed, up to an amount allowed by the court, but
subject to any regulations as to rates and scales of payment made
by the Secretary of State, in the same manner as the expenses of a
prosecution in cases of felony.
=14.= (1) An appellant who is not admitted to bail shall, pending
the determination of his appeal, be treated in such manner as may be
directed by prison rules within the meaning of the Prison Act, 1898.
(2) The Court of Criminal Appeal may, if it seems fit, on the
application of an appellant, admit the appellant to bail pending the
determination of his appeal.
(3) The time during which an appellant, pending the determination of
his appeal, is admitted to bail, and subject to any directions which
the Court of Criminal Appeal may give to the contrary on any appeal,
the time during which the appellant, if in custody, is specially
treated as an appellant under this section, shall not count as part
of any term of imprisonment or penal servitude under his sentence,
and, in the case of an appeal under this Act, any imprisonment or
penal servitude under the sentence, of the appellant, whether it is
the sentence passed by the court of trial or the sentence passed by
the Court of Criminal Appeal, shall, subject to any directions which
may be given by the Court as aforesaid, be deemed to be resumed or to
begin to run, as the case requires, if the appellant is in custody,
as from the day on which the appeal is determined, and, if he is not
in custody, as from the day on which he is received into prison under
the sentence.
(4) Where a case is stated under the Crown Cases Act, 1848, this
section shall apply to the person in relation to whose conviction the
case is stated as it applies to an appellant.
(5) Provision shall be made by prison rules within the meaning of
the Prison Act, 1898, for the manner in which an appellant, when in
custody, is to be brought to any place at which he is entitled to be
present for the purposes of this Act, or to any place to which the
Court of Criminal Appeal or any judge thereof may order him to be
taken for the purpose of any proceedings of that court, and for the
manner in which he is to be kept in custody while absent from prison
for the purpose; and an appellant whilst in custody in accordance
with those rules shall be deemed to be in legal custody.
=15.= (1) The registrar shall take all necessary steps for obtaining
a hearing under this Act of any appeals or applications, notice of
which is given to him under this Act, and shall obtain and lay before
the court in proper form all documents, exhibits, and other things
relating to the proceedings in the court before which the appellant
or applicant was tried which appear necessary for the proper
determination of the appeal or application.
(2) If it appears to the registrar that any notice of an appeal
against a conviction purporting to be on a ground of appeal which
involves a question of law alone does not show any substantial ground
of appeal, the registrar may refer the appeal to the court for
summary determination, and, where the case is so referred, the court
may, if they consider that the appeal is frivolous or vexatious, and
can be determined without adjourning the same for a full hearing,
dismiss the appeal summarily, without calling on any persons to
attend the hearing or to appear for the Crown thereon.
(3) Any documents, exhibits, or other things connected with the
proceedings on the trial of any person on indictment, who, if
convicted, is entitled or may be authorised to appeal under this Act,
shall be kept in the custody of the court of trial in accordance with
rules of court made for the purpose, for such time as may be provided
by the rules, and subject to such power as may be given by the rules
for the conditional release of any such documents, exhibits, or
things from that custody.
(4) The registrar shall furnish the necessary forms and instructions
in relation to notices of appeal or notices of application under
this Act to any person who demands the same, and to officers of
courts, governors of prisons, and such other officers or persons as
he thinks fit, and the governor of a prison shall cause those forms
and instructions to be placed at the disposal of prisoners desiring
to appeal or to make any application under this Act, and shall cause
any such notice given by a prisoner in his custody to be forwarded on
behalf of the prisoner to the registrar.
(5) The registrar shall report to the court or some judge thereof any
case in which it appears to him that, although no application has
been made for the purpose, a solicitor and counsel or counsel only
ought to be assigned to an appellant under the powers given to the
Court by this Act.
=16.= (1) Shorthand notes shall be taken of the proceedings at the
trial of any person on indictment who, if convicted, is entitled
or may be authorised to appeal under this Act, and, on any appeal
or application for leave to appeal, a transcript of the notes, or
any part thereof, shall be made if the registrar so directs, and
furnished to the registrar for the use of the Court of Criminal
Appeal or any judge thereof: Provided that a transcript shall be
furnished to any party interested upon the payment of such charges as
the Treasury may fix.
(2) The Secretary of State may also, if he thinks fit in any case,
direct a transcript of the shorthand notes to be made and furnished
to him for his use.
(3) The cost of taking any such shorthand notes, and of any
transcript where a transcript is directed to be made by the registrar
or by the Secretary of State, shall be defrayed, in accordance with
scales of payment fixed for the time being by the Treasury, out of
moneys provided by Parliament, and rules of court may make such
provision as is necessary for securing the accuracy of the notes to
be taken and for the verification of the transcript.
=17.= The powers of the Court of Criminal Appeal under this Act
to give leave to appeal, to extend the time within which notice
of appeal or of an application for leave to appeal may be given,
to assign legal aid to an appellant, to allow the appellant to be
present at any proceedings in cases where he is not entitled to be
present without leave, and to admit an appellant to bail, may be
exercised by any judge of the Court of Criminal Appeal in the same
manner as they may be exercised by the Court, and subject to the same
provisions; but, if the judge refuses an application on the part of
the appellant to exercise any such power in his favour, the appellant
shall be entitled to have the application determined by the Court of
Criminal Appeal as duly constituted for the hearing and determining
of appeals under this Act.
=18.= (1) Rules of court for the purposes of this Act shall be
made, subject to the approval of the Lord Chancellor, and so far
as the rules affect the governor or any other officer of a prison,
or any officer having the custody of an appellant, subject to the
approval also of the Secretary of State, by the Lord Chief Justice
and the judges of the Court of Criminal Appeal, or any three of such
judges, with the advice and assistance of the Committee hereinafter
mentioned. Rules so made may make provision with respect to any
matter for which provision is to be made under this Act by rules of
court, and may regulate generally the practice and procedure under
this Act, and the officers of any court before whom an appellant has
been convicted, and the governor or other officers of any prison
or other officer having the custody of an appellant and any other
officers or persons, shall comply with any requirements of those
rules so far as they affect those officers or persons, and compliance
with those rules may be enforced by order of the Court of Criminal
Appeal.
(2) The committee hereinbefore referred to shall consist of a
chairman of quarter sessions appointed by a Secretary of State, the
Permanent Under Secretary of State for the time being for the Home
Department, the Director of Public Prosecutions for the time being,
the Registrar of the Court of Criminal Appeal, and a clerk of assize,
and a clerk of the peace appointed by the Lord Chief Justice, and a
solicitor appointed by the President of the Law Society for the time
being, and a barrister appointed by the General Council of the Bar.
The term of office of any person who is a member of the Committee
by virtue of appointment shall be such as may be specified in the
appointment.
(3) Every rule under this Act shall be laid before each House of
Parliament forthwith, and, if any address is presented to His Majesty
by either House of Parliament within the next subsequent thirty days
on which the House has sat next after any such rule is laid before
it, praying that the rule may be annulled, His Majesty in Council
may annul the rule, and it shall thenceforth be void, but without
prejudice to the validity of anything previously done thereunder.
SUPPLEMENTAL
=19.= Nothing in this Act shall affect the prerogative of mercy, but
the Secretary of State on the consideration of any petition for the
exercise of His Majesty’s mercy, having reference to the conviction
of a person on indictment or to the sentence (other than sentence of
death) passed on a person so convicted, may, if he thinks fit, at any
time either--
(_a_) refer the whole case to the Court of Criminal Appeal, and
the case shall then be heard and determined by the Court
of Criminal Appeal as in the case of an appeal by a person
convicted, or
(_b_) if he desires the assistance of the Court of Criminal
Appeal on any point arising in the case with a view to the
determination of the petition, refer that point to the
Court of Criminal Appeal for their opinion thereon, and the
Court shall consider the point so referred and furnish the
Secretary of State with their opinion thereon accordingly.
=20.= (1) Writs of error, and the powers and practice now existing in
the High Court in respect of motions for new trials or the granting
thereof in criminal cases, are hereby abolished.
(2) This Act shall apply in the case of convictions on criminal
informations and coroners’ inquisitions and in cases where a person
is dealt with by a court of quarter sessions as an incorrigible
rogue under the Vagrancy Act, 1824, as it applies in the case of
convictions on indictments, but shall not apply in the case of
convictions on indictments or inquisitions charging any peer or
peeress, or other person claiming the privilege of peerage, with any
offence not now lawfully triable by a court of assize.
(3) Notwithstanding anything in any other Act, an appeal shall lie
from a conviction on indictment at common law in relation to the
non-repair or obstruction of any highway, public bridge, or navigable
river in whatever court the indictment is tried, in all respects
as though the conviction were a verdict in a civil action tried at
assize, and shall not lie under this Act.
(4) All jurisdiction and authority under the Crown Cases Act, 1848,
in relation to questions of law arising in criminal trials which is
transferred to the judges of the High Court by section forty-seven
of the Supreme Court of Judicature Act, 1873, shall be vested in the
Court of Criminal Appeal under this Act, and in any case where a
person convicted appeals under this Act against his conviction on any
ground of appeal which involves a question of law alone, the Court
of Criminal Appeal may, if they think fit, decide that the procedure
under the Crown Cases Act, 1848, as to the statement of a case should
be followed, and require a case to be stated accordingly under that
Act in the same manner as if a question of law had been reserved.
=21.= In this Act, unless the context otherwise requires--
The expression “appellant” includes a person who has been
convicted and desires to appeal under this Act, and
The expression “sentence” includes any order of the court made on
conviction with reference to the person convicted or his wife or
children, and any recommendation of the court as to the making
of an expulsion order in the case of a person convicted, and the
power of the Court of Criminal Appeal to pass a sentence includes a
power to make any such order of the court or recommendation, and a
recommendation so made by the Court of Criminal Appeal shall have
the same effect for the purposes of section three of the Aliens
Act, 1905, as the certificate and recommendation of the convicting
Court.
=22.= The Acts specified in the schedule of this Act are hereby
repealed to the extent mentioned in the third column of that schedule.
=23.= (1) This Act may be cited as the Criminal Appeal Act, 1907.
(2) This Act shall not extend to Scotland or Ireland.
(3) This Act shall apply to all persons convicted after the
eighteenth day of April, nineteen hundred and eight, but shall not
affect the rights, as respects appeal, of any persons convicted on or
before that date.
(The enactments affected by the schedule of repeal are four in number,
namely, the Treason Act, 1695, the Crown Cases Act, 1848, and the two
Supreme Court of Judicature Acts of 1875, and 1881, respectively.)
FOOTNOTE
[39] It was under this section that the notorious murderer, S.
Morrison, or Morris Stein, endeavoured to carry his appeal to the House
of Lords, but the Attorney-General (Sir Rufus Isaacs) refused the
necessary certificate.
APPENDIX G
THE CORONATION OATH OF KING GEORGE V
The Coronation Oath of King George V. is identical with that of Queen
Victoria save in respect of reference to the Church of Ireland:--
THE OATH
¶ His Majesty having already on Monday, the 6th day of February,
1911, in the presence of the two Houses of Parliament, made and
signed the Declaration prescribed, the Archbishop shall, after the
Sermon is ended, go to the King, and standing before him, administer
the Coronation Oath, first asking the King,
Sir, is your Majesty willing to take the Oath?
¶ And the King answering,
I am willing,
¶ The Archbishop shall minister these questions; and the King, having
a book in his hands, shall answer each question severally as follows:
_Archbishop._ Will you solemnly promise and swear to govern the
people of this United Kingdom of _Great Britain_ and _Ireland_,
and the Dominions thereto belonging, according to the Statutes in
Parliament agreed on, and the respective Laws and Customs of the same?
_King._ I solemnly promise so to do.
_Archbishop._ Will you to your power cause Law and Justice, in Mercy,
to be executed in all your judgments?
_King._ I will.
_Archbishop._ Will you to the utmost of your power maintain the
Laws of God, the true profession of the Gospel, and the Prostestant
Reformed Religion established by law? And will you maintain and
preserve inviolably the settlement of the Church of _England_, and
the doctrine, worship, discipline, and government thereof, as by law
established in _England_? And will you preserve unto the Bishops
and Clergy of _England_, and to the Churches there committed to
their charge, all such rights and privileges, as by law do or shall
appertain to them, or any of them?
_King._ All this I promise to do.
[Sidenote: The Bible to be brought;]
¶ Then the King arising out of his chair, supported as before, and
assisted by the Lord Great Chamberlain, the Sword of State being
carried before him, shall go to the Altar, and there being uncovered,
make his solemn Oath in the sight of all the people, to observe the
premisses: laying his right hand upon the Holy Gospel in the great
Bible (which was before carried in the Procession and is now brought
from the Altar by the Archbishop, and tendered to him as he kneels
upon the steps), saying these words:
The things which I have here before promised, I will perform, and
keep.
So help me God.
[Sidenote: And a silver Standish.]
¶ Then the King shall kiss the Book, and sign the Oath.
* * * * *
It is, perhaps, interesting to note that neither the Proclamation,
Accession, Declaration, or Coronation, of a King in any way improves
his legal kingship: he is King from the moment his predecessor’s life
is extinct. Hence the legal saying, “The King never dies.” It was
anomalous for certain official persons in the City of London to address
his Majesty the King as “Prince,” in condoling with him on the death
of King Edward VII., immediately after the event. It was likewise
technically incorrect to refer to the decease of “the King of Portugal
and of the Crown Prince”--at the time of the assassinations. The latter
survived his father by a minute or so, and he, therefore, died a King.
* * * * *
The accompanying paragraph from the _Coronation Service_, by the Rev.
Joseph H. Pemberton, contains some information:
“As to the authority by which the Coronation Service is from time to
time revised. An order is made by the King in Council directing the
Archbishop of Canterbury to prepare a ‘Form and Order,’ due attention
being given to the wishes of the Sovereign on points of detail. But
the Archbishop has also a duty to perform to the Church, that nothing
shall be omitted which through many generations has been held as
essential to the validity of the Service, a Service by which, through
the administration of the outward and visible sign of Holy Unction,
the inward and spiritual grace of the Holy Spirit is conveyed to the
Sovereign for the office and work of a King or Queen in this realm
under the Catholic Church of Christ. For it cannot be too often
repeated in these days that the Coronation of a King is not a civil
ceremony, but a religious service, for the purpose of the setting
apart of a person for a particular and holy office. The King at his
Accession becomes the people’s accepted Sovereign, at his Coronation
he becomes the Lord’s Anointed, holding his divine office as the
representative, the agent, to the people of this realm, of the King
of kings and Lord of lords.”
APPENDIX H
THE POOR PRISONERS’ DEFENCE ACT, THE PERJURY BILL, AND THE CRIMINAL
EVIDENCE ACT
I. THE POOR PRISONERS’ DEFENCE ACT
An extremely short enactment, interesting from several points of view,
is that which deals with the defence of poor prisoners. In itself it
is scarcely anomalous, though the necessity for a poor prisoner to
satisfy the committing justices or the judge of a court of assize, or
chairman of a court of quarter sessions that he, the prisoner, comes
within the meaning of the Act, sometimes tends to produce difficulty
and obstruction. The Act reads:--
AN ACT TO MAKE PROVISION FOR THE DEFENCE OF POOR PRISONERS.
(14th August, 1903)
Be it enacted by the King’s most Excellent Majesty, by and with the
advice and consent of the Lords Spiritual and Temporal, and Commons,
in this present Parliament assembled, and by the authority of the
same, as follows:--
=1.= (1) Where it appears, having regard to the nature of the
defence set up by any poor prisoner, as disclosed in the evidence
given or statement made by him before the committing justices, that
it is desirable in the interests of justice that he should have legal
aid in the preparation and conduct of his defence, and that his means
are insufficient to enable him to obtain such aid--
(_a_) the committing justices, upon the committal of the prisoner
for trial, or
(_b_) the judge of a court of assize or chairman of a court of
quarter sessions, at any time after reading the depositions,
may certify that the prisoner ought to have such legal aid, and
thereupon the prisoner shall be entitled to have a solicitor and
counsel assigned to him, subject to the provisions of this Act.
(2) The expenses of the defence, including the cost of a copy of the
depositions, the fees of solicitor and counsel, and the expenses of
any witnesses shall be allowed and paid in the same manner as the
expenses of a prosecution in cases of indictment for felony, subject,
nevertheless, to any rules under this Act and to any regulations
as to rates or scales of payment which may be made by one of His
Majesty’s Principal Secretaries of State.
=2.= Rules for carrying this Act into effect may be made in the
same manner and subject to the same conditions as Rules under the
Prosecution of Offences Act, 1879.
=3.= In this Act--
“Prisoner” includes a person committed for trial on bail.
“Committing justices” includes a magistrate of the police courts of
the metropolis and a stipendiary magistrate.
“Chairman” includes recorder or deputy recorder or deputy chairman.
=4.= This Act shall not extend to Scotland or Ireland.
=5.= This Act may be cited as the Poor Prisoners’ Defence Act,
1903, and shall come into operation on the first day of January one
thousand nine hundred and four.
The Act is straightforward and clear in its wording, but it seems to
leave something unsaid in its provision for establishing the prisoner’s
insufficiency of means to maintain his defence. The functionary who
has to decide whether or not the prisoner’s poverty is genuine does
not seem to be given any special standard by which to govern his
decision. The responsibility of using public funds where there may be
no real justification must influence him towards excessive caution.
It would be better to make it perfectly plain what would constitute
justification. A judge or quasi-judicial functionary, may be guided
by his own intelligence, so far as he can apply it to the prisoner’s
circumstances, but it may thus involve more time and consideration
to arrive at a proper estimate of the truth than the case is worth.
On the other hand, the prisoner and the police may, and probably do,
conflict in their statements. What is to be done? There is no solution,
unless it be, where the prisoner has got as far as quarter sessions or
the assize, to set the man’s case back, pending the submission of an
affidavit from a police officer deputed to make reasonable inquiry into
the prisoner’s means and resources. Where there is no evidence of funds
put by, an affidavit to this effect should satisfy the recorder, or
judge, in the matter of providing for the defence. In a case where the
prisoner requests legal aid in the police court, a similar principle
could be applied. A police affidavit would be useful as a record.
II. THE PERJURY BILL
A short Bill “to consolidate and simplify the law relating to perjury
and kindred offences,” to be known to future generations as the Perjury
Act, 1911, has recently left the printer. Its sponsor is the Lord
High Chancellor, and its provisions are not without interest to the
general public. It is made up of nineteen clauses and a schedule. It
is proposed to here transcribe it bodily. The Bill, after reciting the
formula of Royal and Parliamentary enactment, runs as follows:--
=1.=--(1) If any person lawfully sworn as a witness or as an
interpreter in a judicial proceeding wilfully makes a statement
material in that proceeding, which he knows to be false or does not
believe to be true, he shall be guilty of perjury, and shall on
conviction thereof on indictment be liable to penal servitude for a
term not exceeding seven years, or to imprisonment with or without
hard labour for a term not exceeding two years, or to a fine or to
both such penal servitude or imprisonment and fine.
(2) The expression “judicial proceeding” includes a proceeding before
any court, tribunal, or person having by law power to hear, receive,
and examine evidence on oath.
(3) Where a statement made for the purposes of a judicial proceeding
is not made before the tribunal itself, but is made on oath before
a person authorised by law to administer an oath to the person who
makes the statement, and to record or authenticate the statement, it
shall for the purposes of this section be treated as having been made
in a judicial proceeding.
(4) A statement made by a person lawfully sworn in England or Ireland
for the purposes of a judicial proceeding--
(_a_) in another part of His Majesty’s dominions, or
(_b_) in a British tribunal lawfully constituted in any place by
sea or land outside His Majesty’s dominions, or
(_c_) in a tribunal of any foreign state,
shall for the purpose of this section be treated as a statement made
in a judicial proceeding in England or Ireland.
(5) Where for the purposes of a judicial proceeding in England or
Ireland, a person is lawfully sworn under the authority of an Act of
Parliament--
(_a_) in any other part of His Majesty’s dominions, or
(_b_) before a British tribunal or a British officer in a foreign
country, or within the jurisdiction of the Admiralty of England,
a statement made by such person so sworn as aforesaid (unless the
Act of Parliament under which it was made otherwise specifically
provides) shall be treated for the purposes of this section as having
been made in the judicial proceeding in England or Ireland for the
purposes whereof it was made.
(6) The question whether a statement on which perjury is assigned was
material is a question of law to be determined by the court of trial.
=2.= If any person--
(1) being required or authorised by law to make any statement on
oath for any purpose, and being lawfully sworn (otherwise than
in a judicial proceeding) wilfully makes a statement which is
material for that purpose and which he knows to be false or
does not believe to be true, or
(2) wilfully uses any false affidavit for the purposes of the Bill
of Sale Act, 1878, as amended by any subsequent enactment,
he shall be guilty of a misdemeanour, and on conviction thereof
on indictment shall be liable to penal servitude for a term not
exceeding seven years or to imprisonment, with or without hard
labour, for a term not exceeding two years, or to a fine or to both
such penal servitude or imprisonment and fine.
=3.= (1) If any person--
(_a_) for the purpose of procuring a marriage, or a certificate
or license for marriage, knowingly and wilfully makes a
false oath, or makes or signs a false declaration, notice or
certificate required under any Act of Parliament for the time
being in force relating to marriage, or
(_b_) knowingly and wilfully makes, or knowingly and wilfully
causes to be made, for the purpose of being inserted in any
register of marriage, a false statement as to any particular
required by law to be known and registered relating to any
marriage.
(_c_) forbids the issue of any certificate, or license for marriage
by falsely representing himself to be a person whose
consent to the marriage is required by law, knowing such
representation to be false,
he shall be guilty of a misdemeanour and on conviction thereof
on indictment shall be liable to penal servitude for a term not
exceeding seven years or to imprisonment, with or without hard
labour, for a term not exceeding two years, or to a fine or to both
such penal servitude or imprisonment and fine.
(2) No prosecution for knowingly and wilfully making a false
declaration for the purpose of procuring any marriage out of the
district in which the parties or one of them dwell shall take place
after the expiration of months from the solemnization of the
marriage to which the declaration refers.
=4.= (1) If any person--
(_a_) wilfully makes any false answer to any question put to him by
any registrar of births or deaths relating to the particulars
required to be registered concerning any birth or death, or
wilfully gives to any such registrar any false information
concerning any birth or death or the cause of death, or
(_b_) wilfully makes any false certificate or declaration under
or for the purposes of any Act relating to the registration
of births or deaths, or knowing any such certificate or
declaration to be false, uses the same as true or gives or
sends the same as true to any person, or
(_c_) wilfully makes, gives or uses any false statement or
declaration as to a child born alive as having been
still-born, or as to the body of a deceased person or a
still-born child in any coffin, or falsely pretends that any
child born alive was still-born, or
(_d_) makes any false statement with intent to have the same
inserted in any register of births or deaths:
shall be guilty of a misdemeanour and shall be liable--
(i) on conviction thereof on indictment to penal servitude for a
term not exceeding seven years, or to imprisonment with or
without hard labour for a term not exceeding two years, or to
a fine instead of either of the said punishments; and
(ii) on summary conviction thereof to a penalty not exceeding ten
pounds:
(2) A prosecution on indictment for an offence against this section
shall not be commenced more than three years after the commission of
the offence.
=5.= If any person knowingly and wilfully makes (otherwise than on
oath) a statement false in a material particular, and the statement
is made--
(_a_) in a statutory declaration, or
(_b_) in an abstract account, balance sheet, book, certificate,
declaration, entry, estimate, inventory, notice, report,
return, or other document which is authorised or required to
make, attest, or verify, by (under or for the purposes of)
any public general Act of Parliament for the time being in
force, or
(_c_) in any oral declaration or oral answer which he is required
to make by (under or in pursuance of) any public general Act
of Parliament for the time being in force,
he shall be guilty of a misdemeanour and shall be liable on
conviction thereof on indictment to imprisonment with or without hard
labour, for any term not exceeding two years, or to a fine or to both
such imprisonment and fine.
=6.= If any person--
(_a_) procures or attempts to procure himself to be registered on
any register or roll kept under or in pursuance of any public
general Act of Parliament for the time being in force of
persons qualified by law to practise any vocation or calling,
or
(_b_) procures or attempts to procure a certificate of the
registration of any person on any such register or roll as
aforesaid,
by wilfully making or producing or causing to be made or produced
either verbally or in writing, any declaration, certificate, or
representation which he knows to be false or fraudulent, he shall be
guilty of a misdemeanour and shall be liable on conviction thereof on
indictment to imprisonment for any term not exceeding twelve months,
or to a fine, or to both such imprisonment and fine.
=7.= (1) Every person who aids, abets, counsels, procures, or suborns
another person to commit an offence against this Act shall be liable
to be proceeded against, indicted, tried and punished as if he were a
principal offender.
(2) Every person who incites or attempts to procure or suborn
another person to commit an offence against this Act shall be guilty
of a misdemeanour, and on conviction thereof on indictment shall be
liable to imprisonment, or to a fine, or to both such imprisonment
and fine.
=8.= Where an offence against this Act or any offence punishable as
perjury under any other Act of Parliament is committed in any place
either on sea or land outside the United Kingdom the offender may
be proceeded against, indicted, tried, and punished in any county
or place in England where he was apprehended or is in custody as if
the offence had been committed in that county or place; and for all
purposes incidental to or consequential on the trial or punishment of
the offence, it shall be deemed to have been committed in that county
or place.
=9.= (1) Where any of the following authorities, namely, a judge
of or person presiding in a court of record, or a petty sessional
court, or any justice of the peace sitting in special sessions, or
any sheriff or his lawful deputy before whom a writ of inquiry or
a writ of trial is executed is of opinion that any person has in
the course of a proceeding before that authority been guilty of
perjury, the authority may order the prosecution of that person
for such perjury in case there shall appear to be reasonable cause
for such prosecution and may commit him, or admit him to bail, to
take his trial at the proper court, and may require any person to
enter into a recognizance to prosecute or give evidence against the
person whose prosecution is so ordered, and may give the person so
bound to prosecute a certificate of the making of the order for the
prosecution, for which certificate no charge shall be made.
(2) An order made or a certificate given under this section shall be
given in evidence for the purpose or in the course of any trial or a
prosecution resulting therefrom.
=10.= A court of quarter sessions shall not have jurisdiction to try
an indictment for any offence against this Act, or for an offence
which under any enactment for the time being in force is declared
to be perjury or to be punishable as perjury, or as subornation of
perjury.
=11.= The provisions of the Vexatious Indictments Act, 1859, and the
Acts amending the same, shall apply in the case of any offence
punishable under this Act, and in the case of any offence which
under any other enactment for the time being in force, is declared
to be perjury or subornation of perjury or is made punishable as
perjury or as subordination of perjury, in like manner as if all the
said offences were enumerated in section one of the said Vexatious
Indictments Act, 1859: Provided that in that section a reference
to this Act shall be substituted for the reference therein to the
Criminal Procedure Act, 1851.
=12.= (1) In an indictment--
(_a_) for making any false statement or false representation
punishable under this Act, or
(_b_) for unlawfully, wilfully, falsely, fraudulently, deceitfully,
maliciously, or corruptly taking, making, signing, or
subscribing any oath, affirmation, solemn declaration,
statutory declaration, affidavit, deposition, notice,
certificate, or other writing,
it is sufficient to set forth the substance of the offence charged,
and before which court or person (if any) the offence was committed
without setting forth the proceedings or any part of the proceedings
in the course of which the offence was committed, and without setting
forth the authority of any court or person before whom the offence
was committed.
(2) In an indictment for aiding, abetting, counselling, suborning,
or procuring any other person to commit any offence hereinbefore in
this section mentioned, or for conspiring with any other person, or
with attempting to suborn or procure any other person, to commit any
such offence, it is sufficient--
(_a_) where such an offence has been committed, to allege that
offence, and then to allege that the defendant procured the
commission of that offence, and
(_b_) where such offence has not been committed, to set forth
the substance of the offence charged against the defendant
without setting forth any matter or thing which it is
unnecessary to aver in the case of an indictment for a false
statement or false representation punishable under this Act.
=13.= A person shall not be liable to be convicted of any offence
against this Act, or of any offence declared by any other Act to be
perjury or subornation of perjury or to be punishable as perjury or
subornation of perjury solely upon the evidence of one witness as to
the falsity of any statement alleged to be false.
=14.= On a prosecution
(_a_) for perjury alleged to have been committed on the trial of an
indictment for felony or misdemeanour, or
(_b_) for procuring or suborning the commission of perjury on any
such trial,
the fact of the former trial shall be sufficiently proved by the
production of a certificate containing the substance and effect
(omitting the formal parts) of the indictment and trial purporting
to be signed by the clerk of the court, or other person having the
custody of the records of the court where the indictment was tried,
or by the deputy of the clerk or other person, without proof of the
signature or official character of the clerk or person appearing to
have signed the certificate.
=15.= (1) For the purposes of this Act the forms and ceremonies used
in administering an oath are immaterial, if the court or person
before whom the oath is taken has power to administer an oath for
the purpose of verifying the statement in question, and if the oath
has been administered in a form and with ceremonies which the person
taking the oath has accepted without objection, or has declared to be
binding on him.
(2) In this Act--
The expression “oath” in the case of persons for the time being
allowed by law to affirm or declare instead of swearing, includes
“affirmation” and “declaration,” and the expression “swear” in the
like case includes “affirm” and “declare”; and
The expression “statutory declaration” means a declaration made
by virtue of the Statutory Declarations Act, 1835, or of any Act,
Order in Council, rule or regulation applying or extending the
provisions thereof; and
The expression “indictment” includes “criminal information.”
=16.= (1) Where the making of a false statement is not only an
offence under this Act, but also by virtue of some other Act is
a corrupt practice or subjects the offender to any forfeiture or
disqualification or to any penalty other than penal servitude, or
imprisonment, or fine, the liability of the offender under this Act
shall be in addition to and not in substitution for his liability
under such other Act.
(2) Nothing in this Act shall apply to a statement made without oath
by a child under the provisions of the Prevention of Cruelty to
Children Act, 1904, and the Children Act, 1908.
(3) Where the making of a false statement is by any other Act,
whether passed before or after the commencement of this Act, made
punishable on summary conviction proceedings may be taken either
under such other Act or under this Act:
Provided that where such an offence is by any Act passed before the
commencement of this Act, as originally enacted, made punishable only
on summary conviction, it shall remain only so punishable.
=17.= The enactments specified in the schedule of this Act are hereby
repealed, so far as they apply to England, to the extent specified in
the third column of that schedule.
=18.= This Act shall not extend to Scotland or Ireland.
=19.= This Act may be cited as the Perjury Act, 1911, and shall come
into operation on the first day of January, nineteen hundred and
twelve.
The schedule attached to the new Bill--which comes to an end, so far as
the provisions are concerned, with clause 19--repeals one hundred and
thirty-two legislative measures, the first one to go, being 52 Hen. 8.
c. 9.--“Agenst maintenance and embracery byeng of titles, etc.”
The Perjury Bill promises to crush out many anomalous conditions, not
the least of which are those connected with the facility afforded at
present to the supply of false data to registrars of births and deaths,
more particularly in respect to births. Under existing conditions, by a
passive method of _suppressio veri_, as opposed to _expressio falsi_,
the most grossly inaccurate entries may be recorded in the registers.
For a person who voluntarily sets himself to speak what is false, there
is no limit to the length to which he may go, without let or hindrance.
By the force of the new Bill, this state of affairs will come to an
abrupt and timely end. It is high time, too, for the records of England
are filled with the most unwarrantable entries.
Where two persons are cohabiting together as man and wife, and a
child is born, the chances are the father, if he goes to record the
birth, will merely be asked the maiden name of his wife. If he is a
good-natured man, he may answer in all truth that her name was Joan
Stuart, or whatever the name may be. He is not asked whether he _is_
actually married in law, or when and where he _was_ married, nor what
evidence he has to show that any marriage ever took place. Admittedly,
the lack of insistence on the part of the authorities is benign in one
way, but it leaves loop-holes for all sorts of abuses. The Perjury Bill
threatens to stop them up.
In sub-section (2), clause 5, of the Perjury Bill, there is the
line, “after the expiration _of months_ from the solemnization of the
marriage.” What “the expiration of months” means, Heaven only knows!
Either by accident or intention an anomaly will be created unless
His Majesty’s Stationery Office, or the Printers to the King’s Most
Excellent Majesty, will assume responsibility and correct the error.
As the Bill stands, “the expiration of months” may mean any number of
months, which is grotesque on the face of it.
III. THE CRIMINAL EVIDENCE ACT
The Criminal Evidence Act, 1898, comes out of chronological order
here, but it is none the worse for that. It might have been placed
first of all, instead of granting precedence to the Poor Prisoners’
Defence Act, 1903, though in the present arrangement of several short
Acts of Parliament, various considerations have exercised the author.
Then, too, for instance, the Perjury Bill, 1911, quite the newest
thing in legislation, supplies a form of introduction to the Criminal
Evidence Act, which has given great and uninterrupted scope to half
a generation of liars. It is the constant complaint of judges that
a criminal when giving evidence on his own behalf rarely tells the
truth, or anything approaching the truth. Comment on the subject flows
freely from the Bench, with every possible cause. If criminals were
not allowed to “speak for themselves,” at least the occupants of the
dock could tell no lies. Still, there are so many technical fictions
permitted nowadays that one half expects a man to lie with _sang
froid_, in an attempt to save his own skin. This is scarcely morality,
but it is a practical and true way to look upon an evil which is akin
to nature. On one of those rare occasions, when a murderer is caught
red-handed, he will enter a plea of “Not Guilty,” as a matter of
course. The plea is a fiction in itself, but an even greater one is to
be found in the amendment or alteration of a plea of “Guilty” to “Not
Guilty,” the most absurd anomaly sanctioned in the English courts, one
due, it may be explained, to the tolerance of the judiciary.
Owing to the shortness of the Criminal Evidence Act, and owing also
to its clearness of meaning, it may here be inserted intact, without
misgiving. It is made up of only seven brief sections, the first of
which begins,
=1.= Every person charged with an offence, and the wife or husband,
as the case may be, of the person so charged, shall be a competent
witness for the defence at every stage of the proceedings, whether
the person so charged is charged solely or jointly with any other
person. Provided as follows:--
(_a_) a person so charged shall not be called as a witness in
pursuance of this Act except upon his own application.
(_b_) The failure of any person charged with an offence, or of
the wife or husband, as the case may be, of the person so
charged, to give evidence shall not be made the subject of
any comment by the prosecution.
(_c_) The wife or husband of the person charged shall not, save as
in this Act mentioned, be called as a witness in pursuance of
this Act except upon the application of the person so charged.
(_d_) Nothing in this Act shall make a husband compellable to
disclose any communication made to him by his wife during the
marriage, or a wife compellable to disclose any communication
made to her by her husband during the marriage.
(_e_) A person charged and being a witness in pursuance of
this Act may be asked any question in cross-examination
notwithstanding that it would tend to criminate him as to the
offence charged.
(_f_) A person charged and called as a witness in pursuance of
this Act shall not be asked, and if asked shall not be
required to answer, any question tending to show that he
has committed or been convicted of or been charged with any
offence other than that wherewith he is then charged, or is a
bad character, unless--
(i) the proof that he has committed or been convicted of
such other offence is admissible evidence to show
that he is guilty of the offence wherewith he is then
charged, or
(ii) he has personally or by his advocate asked questions
of the witnesses for the prosecution with a view to
establish his own good character, or has given evidence
of his good character, or the nature or conduct of
the defence is such as to involve imputations on the
character of the prosecutor or the witnesses for the
prosecution, or
(iii) he has given evidence against any other person charged
with the same offence.
(_g_) Every person called as a witness in pursuance of this Act
shall, unless otherwise ordered by the court, give his
evidence from the witness box or other place from which the
other witnesses give their evidence.
(_h_) Nothing in this Act shall affect the provisions of section
eighteen of the Indictable Offences Act, 1848, or any right
of the person charged to make a statement without being sworn.
=2.= Where the only witness to the facts of the case called by the
defence is the person charged, he shall be called as a witness
immediately after the close of the evidence for the prosecution.
=3.= In cases where the right of reply depends upon the question
whether evidence has been called for the defence, the fact that the
person charged has been called as a witness shall not of itself
confer on the prosecution the right of reply.
=4.= (1) The wife or husband of a person charged with an offence
under any enactment mentioned in the schedule to this Act may be
called as a witness either for the prosecution or defence and without
the consent of the person charged.
(2) Nothing in this Act shall affect a case where the wife or husband
of a person charged with an offence may at common law be called as a
witness without the consent of that person.
=5.= In Scotland, in a case where a list of witnesses is required,
the husband or wife of a person charged shall not be called as
a witness for the defence, unless notice be given in the terms
prescribed by section thirty-six of the Criminal Procedure (Scotland)
Act, 1887.
=6.= (1) This Act shall apply to all criminal proceedings,
notwithstanding any enactment in force at the commencement of this
Act, except that nothing in this Act shall affect the Evidence Act,
1877.
(2) But this Act shall not apply to proceedings in courts martial
unless so applied--
(_a_) as to courts martial under the Naval Discipline Act, by
general orders made in pursuance of section sixty-five of
that Act, and
(_b_) as to courts martial under the Army Act by rules made in
pursuance of section seventy of that Act.
=7.= (1) This Act shall not extend to Ireland.
(2) This Act shall come into operation on the expiration of two
months from the passing thereof.
(3) This Act may be cited as the Criminal Evidence Act, 1898.
It seems a farce to put a criminal in the position of a witness, and
unless he has his wits about him he may have good cause to regret
taking advantage of the Act. The evidence of an accused person must, of
necessity, be discounted in the mind of the judge, and very properly,
too, when it is almost invariably false, or, at best, materially
tainted with falsehood. The instinct of self-preservation is strong
in every man, however lowly his sphere; accuse a public servant of
drunkenness while on duty, and he will, with the aid of his associates,
manufacture evidence of his invariable sobriety! It is the same thing
with persons accused of crime. Accuse them, and they will fight to
escape. That they are guilty is a detail. The Criminal Evidence Act
merely gives them an additional crutch on which to lean, _i.e._, the
license of personal explanation. That the Act is based on benevolence
and a desire to do justice, and for such reasons is worthy of respect,
one cannot doubt, but candour compels one to submit, also, that it
affords a fertile opportunity for perjury on the part of a criminal,
and for an unnecessary waste of time.
Since the trial, at the Central Criminal Court, of the murderer,
“Stinie” Morrison, or Morris Stein, the Criminal Evidence Act has
attracted a good deal of special comment. The bulk of this comment
has been directed against that portion of subsection (_b_), section
1, which, where “the nature or conduct of the defence is such as to
involve imputations on the character of the prosecutor or the witnesses
for the prosecution,” authorises the prosecution to question the
accused as to his past crimes, convictions, etc.
“Defending counsel may again, as in Rex v. Morrison,” says a legal
writer in _The Daily Mail_, “feel it his duty to attack the characters
of some of the witnesses for the Crown. At once the prisoner is
rendered liable to have his whole dossier--generally a damaging
one--laid before the jury. That is an immense step forward to the
Continental system, where the judge’s interrogatories always begin with
a catechism on the prisoner’s previous crimes.”
The same matter has brought some remarks from the law correspondent of
_The Pall Mall Gazette_, “If there is to be legislation on the subject,
one suggestion may be hazarded. It is that, whatever other amendments
in the Criminal Evidence Act experience may demand, an exception from
the stringent rule should be made in capital cases. When the penalty
is death, admit nothing but ‘the facts’ and exclude bad character from
them.”
Even _The Law Times_ takes up much the same attitude as the lay
journals. “It has always been our boast,” it states, “so far as the
administration of our criminal law is concerned, that a prisoner must
be deemed to be innocent until he is proved guilty and that the onus is
upon the prosecution to prove his guilt. The effect of the Act of 1898
has been imperceptibly and gradually to change that position, and to a
large extent nowadays the onus of proving his innocence in many cases
in fact falls upon the accused.”
Transcriber’s Notes
• Italic text represented with surrounding _underscores_.
• Bold text represented with surrounding =equal signs=.
• Small Caps converted to ALL CAPS.
• Obvious typographic errors silently corrected.
• Variations in hyphenation and spelling left as in the original.
• Footnotes renumbered consecutively and moved to the end of their
respective chapters. There are two intentionally duplicated footnote
references that use the same footnote source.