CHAPTER XII

THE MORALITY BILL, ACCESSION AND CORONATION DECLARATIONS AND OATHS

I. THE MORALITY BILL

The Morality Bill, so designated because of its peculiar provisions, contains some instructive reading. The most questionable provision in the Bill is formed by a portion of sub-section (1), section 9. “If any woman, who is a prostitute or a reputed prostitute, shall permit any boy to have connection with her ... such woman shall be guilty of a misdemeanour, and shall be liable upon conviction on indictment to be imprisoned, with or without hard labour, for any term not exceeding two years.” “Boy” for the purposes of the Bill means a male under the age of nineteen years.

Such a provision could scarcely be conceived in any country other than England or America. No doubt it is well-meant, but in the complex state of society in towns, it is almost incapable of being put into practical effect.

That part of subsection (1), section 19, which makes it punishable for any person to favour or encourage the connection between a boy and a prostitute, is quite above reproach. The Bill in its other provisions is largely protective and meritorious. Its punitive side is also justified: indeed, it is scarcely harsh enough towards the man who lives on the immoral earnings of a woman: “Any person who knowingly lives, either wholly or in part, upon the immoral earnings of a woman (subsection (1), section 13), shall be guilty of a misdemeanour, and shall be liable, if a male, to be imprisoned upon summary conviction for any term not exceeding six months, with or without hard labour, or upon conviction on indictment for any term not exceeding twelve months, with or without hard labour.... Where a person is convicted on indictment of an offence under this section, it shall be lawful for the Court to direct that he be subject to the supervision of the police under section eight of the Prevention of Crimes Act, 1871, notwithstanding that he has not been previously convicted of crime.” The summary conviction limit of six months is inadequate: so, likewise, is the limit of twelve months fixed for the punishment on conviction on indictment. The offence is one of the worst under the criminal law from the human standpoint; it is not only _mala quia prohibita_ but _mala per se_ in the public mind. The scoundrels who traffic in prostitution well deserve a greater punishment than the Bill suggests. “Prostitutes” in this sense does not mean the street women of the West End so much as those girls who are lured from the Continent, on a promise of high wages in London milliners’ shops, and then forced for a time at least by the women who import them to frequent certain so-called theatrical resorts. Many of these girls are not naturally vicious; they are merely the prey of the older women who work in conjunction with male supporters, some of whom take as much as thirty or forty pounds a week from the earnings of one of the victims. The men in question advise on and direct matters through the older women: as a matter of business, when the necessity arises, they also supply persons to perform illegal operations. To give an illustration of the _modus operandi_, generally, it will be necessary to narrate a passage from the history of one of these atrocious enterprises. _A_, a Paris shop-girl, aged 19, good-looking and well-formed, was induced to come to this country by _B_, a South American harlot established in London. The inducement was a very good wage at a West End shop where the English language could easily be picked up, according to report. _A_, a perfectly respectable girl, agreed to come to London with _B_, and shortly afterwards she found herself in a flat in Oxford Street (the rent of which was about £7 a week). She was kept at the flat until some evening dresses had been obtained, and then she was taken to a certain variety theatre by _B_. The girl could speak no English and her character was not self-assertive or strong. She knew nothing about French consuls or the English police, and, then, too, her ordinary wearing apparel had been taken from her by _B_. She, therefore, found herself on this first occasion, in the brightly-lighted promenade of a “music hall,” with many well-dressed men and women in her immediate vicinity. _B_ was near at hand to keep a watchful eye upon her. A patron of the place, one who was fluent with his French, soon made off with her to the flat in Oxford Street, to which he had been directed by _B_. (_A_ was herself incapable of supplying the address to the cabman). The girl then explained that she had had her ordinary clothes taken from her by _B_, that _B_ kept a man in the background, and that she, _A_, was entirely helpless. At a subsequent meeting, _A_ explained that _B_ took possession of about forty pounds a week, from her, and that the pretext was that it was being banked! The only clothes to which she, _A_, had access were evening gowns; she was kept without money, too, under constant surveillance, amid conditions which she did not like. The final scene was enacted a few months later, when the person, to whom _A_ had confided her story, went to the flat and found her missing. Her place had been filled by a newly-arrived _girl of fifteen_, procured by the same process from a Paris shop. On persistent enquiry, _A_ was found in another room suffering from the consequences of an illegal operation, which had been forced upon her by the joint efforts of _B_ and the male director of affairs.

A maximum penalty of twelve months’ hard labour for a scoundrel of the stamp of _B’s_ “lover” is most disproportionate to the offence. Of course, such a man would be liable to a greater penalty, if a girl of fifteen years of age were brought into the case. But on the other facts alone, the law should be less merciful.

Section 10, of the Morality Bill, is worth transcribing in full.

“(1) If any male person shall have connection with a woman who is to his knowledge his granddaughter, sister, daughter, niece, or mother, he shall be guilty of felony, and shall be liable upon conviction on indictment to be imprisoned, with or without hard labour, for any term not exceeding two years, or be kept in penal servitude for any term not less than three years and not exceeding seven years: Provided that if it is alleged in the indictment and proved that the girl was, at the time of the commission of the offence, under the age of sixteen years, the maximum term of penal servitude which the court may inflict shall be ten years.

“(2) If any male person shall attempt to have connection with a woman who is to his knowledge his granddaughter, sister, niece, or mother, he shall be guilty of a misdemeanour, and shall be liable upon conviction on indictment to be imprisoned, with or without hard labour, for any term not exceeding two years.

“(3) If any woman, not being a girl, shall permit her grandfather, father, brother, uncle, or son to have connection with her (knowing him to be her grandfather, father, brother, uncle, or son, as the case may be) she shall be guilty of a felony, and shall be liable upon conviction on indictment to be imprisoned, with or without hard labour, for any term not exceeding two years, or to be kept in penal servitude for any term not less than three years, and not exceeding seven years.”

Where the word “mother” is used in the first part of subsection (1), at sight it appears careless to put, nearer the end of the same subsection, “provided that if it is alleged in the indictment and proved that _the girl was, at the time of the commission of the offence, under the age of sixteen years,” etc._

The “Memorandum” preceding the Morality Bill contains an epitome of the whole conception. “The general object of this Bill is to substitute for the Criminal Law Amendment Act, 1885, the Vagrancy Act, 1898, the Punishment of Incest Act, 1908, the Obscene Publications Act, 1857, the Indecent Advertisements Act, 1889, and certain other enactments, a comprehensive measure which shall materially strengthen the law relating to offences against morality and decency.... The chief proposals of the Bill are:--

“1. To raise ‘the age of consent’ to nineteen, the full offence to be felony, and the maximum punishment to be--(_a_) if the girl is any age under sixteen, penal servitude for ten years; (_b_) if the girl is over sixteen, penal servitude for five years.

“2. To protect all feeble-minded women and girls, the full offence to be felony, the attempt a misdemeanour, and the maximum punishment to be for the felony penal servitude for five years, and for the misdemeanour imprisonment for two years.

“3. To make it felony to obtain, and a misdemeanour to attempt to obtain, consent by any inducement or threat in connection with employment, the maximum punishment to be for the felony penal servitude for five years, and for the misdemeanour imprisonment for two years.

“4. To make it a misdemeanour for any woman or girl of abandoned character to permit a boy under nineteen years of age to have immoral relations with her, or for any person to favour or encourage such relations, the maximum punishment to be imprisonment for two years.

“5. To make the full offences specified in section two, which relates to procuration, of the Criminal Law Amendment Act, 1885, felonies, for which the maximum punishment is to be penal servitude for five or ten years, according to the age of the girl; and to extend the protection against procuration, and attempted procuration, now enjoyed by girls of good character under the age of twenty-one--(_a_) to all women of good character; (_b_) to all feeble-minded women and girls, whatever their character; (_c_) to all girls under the age of nineteen, whatever their character.

“6. To make the offences specified in subsections (1) and (2) of section three of the Criminal Law Amendment Act, 1885 (_viz._, procuration by threats or false pretences, etc.), felonies for which the maximum punishment is to be penal servitude for five or ten years, according to the age of the girl; and to make an attempt to procure by false pretences a misdemeanour for which the maximum punishment is to be imprisonment for two years.

“7. To make the offence specified in subsection (3) of section three of the Criminal Law Amendment Act, 1885 (_viz._, the administration of drugs for an immoral purpose) felony for which the maximum punishment is to be penal servitude for ten years.

“8. To make the offences specified in sections six, seven and eight of the Criminal Law Amendment Act, 1885 (_viz._, the offences of permitting defilement on premises, of abduction for an immoral purpose, and the unlawful detention for such purpose) felonies for which the maximum punishment is to be penal servitude for five or ten years, according to the age of the girl.

“9. To make an offence under section eleven of the Criminal Law Amendment Act, 1885--(_a_) when committed with a boy under the age of sixteen years, felony for which the maximum punishment is to be penal servitude for ten years; (_b_) when committed with a person over that age, felony punishable with penal servitude for five years.

“10. To make the keeping of premises for immoral purposes a misdemeanour punishable summarily with a fine of 50_l._ and imprisonment for six months, or upon conviction on indictment with a fine of 200_l._ and imprisonment for two years.

“11. To make further provision for the suppression of indecent, immoral, and grossly offensive literature, pictures, advertisements, etc., the offence to be a misdemeanour punishable upon summary conviction with a fine of 50_l._ and imprisonment for six months, or upon conviction on indictment with a fine of 100_l._ and imprisonment for twelve months. Further powers are given to the Postmaster-General.

“12. To make it a misdemeanour punishable upon summary conviction with imprisonment for six months, or upon conviction on indictment with imprisonment for twelve months, for any male person knowingly to live upon the immoral earnings of a woman or girl; and to make it a misdemeanour punishable upon summary conviction with imprisonment for six months for any woman to do so. (The expression ‘immoral earnings’ is defined to mean the earnings of prostitution or of habitual immorality.)

“13. To make it a misdemeanour punishable summarily with imprisonment for six months, or upon conviction on indictment with imprisonment for twelve months, for a male person to solicit persistently for an immoral purpose in a street or public place.

“14. To make ordinary cases of soliciting punishable summarily with a fine of 10_l._, or with imprisonment for two months without the option of a fine, or upon a second or subsequent conviction with a fine of 30_l._, or with imprisonment for six months without the option of a fine.

“15. To extend to an amended form the provisions of the Children’s Act, 1908, relating to persons having the custody of girls, and either causing their seduction or not exercising due care, to the cases of girls between the ages of sixteen and nineteen years.

“16. To strengthen the provisions of the Children’s Act, 1908, relating to the punishment of parents and others who allow children and young persons to reside in or frequent premises kept for immoral purposes; and to extend those provisions to the protection of persons between the ages of sixteen and nineteen.

“17. To enable a person who is convicted on indictment of--(_a_) keeping premises for immoral purposes; or (_b_) living on a woman’s immoral earnings, being a male; or (_c_) persistently soliciting, being a male; or (_d_) selling indecent literature, etc., to be placed under police supervision, notwithstanding that such person has not been previously convicted of crime.

“18. To require courts to recommend for expulsion aliens over the age of nineteen who are convicted of certain offences.

“19. To restrict the punishment for rape to penal servitude for not more than ten years, except under certain aggravated circumstances, when the maximum term is to be fifteen years.

“20. To restrict the punishment for offences under sections fifty-eight and sixty-one of the Offences against the Person Act, 1861, to penal servitude for not more than ten years, and for offences under section sixty-two of that Act to penal servitude for not more than seven years.

“21. To re-enact the Punishment of Incest Act, 1908; to extend its range; and to make such other amendments as are required to render its provisions consistent with the above proposals, the full offence to be felony.

“22. To restrict the punishment of young offenders for any of the above offences (including rape, incest, etc.) by providing--(_a_) that no person under the age of twenty-one shall be liable to a longer term of penal servitude than seven years, unless he is guilty of rape under certain aggravated circumstances, in which case he is to be liable to penal servitude for ten years; and (_b_) that no person under the age of eighteen shall be liable to penal servitude.

“23. To render an indecent assault upon a person under the age of nineteen years, cognizable summarily with the consent of the accused, but to increase the maximum term of imprisonment which a court of summary jurisdiction may, under those circumstances, inflict, to six months. (_Cf._ a similar provision in the Children’s Act, 1908.)

“24. To enable the court to be cleared (representatives of the press being allowed to remain) during proceedings relating to offences against morality or decency, and to enable the worst of such cases to be tried _in camera_.

“25. To repeal--(_a_) The Criminal Law Amendment Act, 1885; (_b_) The Vagrancy Act, 1898; (_c_) The Punishment of Incest Act, 1908; (_d_) Sections sixteen, seventeen, eighteen, one hundred and twenty-eight (2), of the Children Act, 1908, and the Second Schedule of that Act; (_e_) The Obscene Publications Act, 1857; (_f_) The Indecent Advertisements Act, 1889; (_g_) Other enactments.”

The comprehensive nature of the Morality Bill can scarcely be doubted after a perusal of the foregoing _Memorandum_. There is no question whatever, the bulk of the provisions are good. But the penal offence constituted by a prostitute’s intercourse with a boy under nineteen seems somewhat far-fetched. The intention may be good, though it would look peculiar as a section of a statute. There is no need to comment further on the subject here.

Prior to going through the Bill, the writer had intended suggesting the insertion in it of the following provision: “In any case where it has been proved that a girl was induced to sexual intercourse on the promise or understanding that a theatrical or other engagement was to be the result of such intercourse, or where a theatrical or other engagement has already been obtained and is to be continued only on submission to an act of sexual intercourse with a manager, proprietor, or other person in authority, then such person shall be guilty of a misdemeanour punishable with imprisonment with or without hard labour for any term not exceeding twelve months.” On examining the contents of the Bill, he, however, found the contingency provided for in section 8.

“8.--(1) If any male person shall obtain, or if any person of either sex shall aid or abet any male person in obtaining, connection with any woman by any inducement or threat in connection with her employment in any capacity, or with any attempt on her part to obtain employment in any capacity, such person shall be guilty of felony, and shall be liable upon conviction on indictment to be imprisoned, with or without hard labour, for any term not exceeding two years, or to be kept in penal servitude for any term not less than three years and not exceeding five years. (2) If any male person shall attempt to obtain, or if any person of either sex shall aid or abet any male person in attempting to obtain, connection with any woman by any inducement or threat in connection with her employment in any capacity, or with any attempt on her part to obtain employment in any capacity, such person shall be guilty of a misdemeanour, and shall be liable upon conviction on indictment to be imprisoned, with or without hard labour, for any term not exceeding two years.”

There are two classes of enterprise which are peculiarly associated with what may be termed submissive immorality for the purpose of legitimate employment. In the one class the victim’s downfall finds its beginning in connection with theatrical aspirations, whereas in the other class it is indirectly brought about by the demands of fashion. There is reason to believe that a well-formed, good-looking girl, who is anxious to get on the stage will often only accomplish her desire by first submitting to sexual intercourse with her prospective employer. This is not always so, naturally, but it is a general custom in some quarters. In many, if not in most cases, submission means the seduction of a previously virtuous girl. The condition precedent to a theatrical engagement, more particularly on the “musical comedy” stage, is, therefore, of such a character that the harshest measures are needed to put it down. The whole process is iniquitous. On the one hand, there is an eager, inexperienced young woman, foolish enough to want to go on the stage, and on the other, there is a calculating scoundrel who regards her as his certain prey. The second important variation to the offence of carnally knowing a woman, through the influence of her employment, frequently arises in West End milliners’ shops. The employment by male _costumiers_--that is to say, at the most fashionable shops--of attractive young women, who, for their figures and appearance, are chosen as models to display Paris hats and costumes, gives rise to a whole series of iniquitous conditions which would shame the most indecent novel. Models of the sort referred to are generally subjected to much the same treatment as the “musical comedy” aspirants, but there is this difference--that the former usually obtain the engagement before the “cloven hoof” of their employer begins to show itself.

The searchlight of vigilance would consume itself were it applied to half the subjects which pass through one’s mind as suitable for attack. That is to say, in connection with submissive immorality for the purpose of legitimate employment.

II. ACCESSION AND CORONATION DECLARATIONS AND OATHS

This little work would, perhaps, be incomplete without some mention of the Accession Declarations and Coronation Oaths.

It is first proposed to incorporate here the “Declarations of Heads of States” which declarations were collected and ordered to be printed by the House of Commons in May, 1901.

GREAT BRITAIN AND IRELAND.

I. _Declaration made by the King, on his Accession, in the House of Lords, pursuant to section 1 of the Bill of Rights 1 W. & M. sess. 2, c. 2_.

I, EDWARD, do solemnly and sincerely, in the presence of God, profess, testify, and declare, that I do believe that in the Sacrament of the Lord’s Supper there is not any transubstantiation of the elements of bread and wine into the body and blood of Christ at or after the consecration thereof by any person whatsoever; and that the invocation or adoration of the Virgin Mary or any other Saint, and the sacrifice of the Mass, as they are now used in the Church of Rome are superstitious and idolatrous, and I do solemnly, in the presence of God, profess, testify, and declare, that I do make this declaration and every part thereof in the plain and ordinary sense of the words read unto me as they are commonly understood by English Protestants without any evasion, equivocation, or mental reservation whatsoever, and without any dispensation already granted me for this purpose by the Pope or any other authority or person whatsoever, or without any hope of such dispensation from any person or authority whatsoever, or without thinking that I am or can be acquitted before God or man, or absolved of this declaration or any part thereof although the Pope or any other person or persons or power whatsoever should dispense with or annul the same, or declare that it was null and void from the beginning.

II. _Oath with regard to the Church of Scotland, taken by the King at his first Council, on 23rd January, 1901._

I, EDWARD VII., King of the United Kingdom of Great Britain and Ireland, Defender of the Faith, do faithfully Promise and Swear that I shall inviolably maintain and preserve the settlement of the true Protestant Religion, with the Government, Worship, Discipline, Rights and Privileges of the Church of Scotland as established by the Laws made there in prosecution of the Claim of Right, and particularly by an Act, intituled An Act for securing the Protestant Religion and Presbyterian Church Government, and by the Acts passed in the Parliament of both Kingdoms for Union of the two Kingdoms.

SO HELP ME GOD.

EMPIRE OF GERMANY.

There is no provision in the constitution of the German Empire for an oath regarding the constitution on the part of the German Emperor; nor does the constitution contain provisions respecting the making of a promise on oath or of other solemn declarations by the Emperor. On the other hand, the King of Prussia, in accordance with Article 54 of the Charter of the Constitution for the State of Prussia, in the presence of the United Chambers of the Prussian Diet, makes a promise on oath “to keep the constitution of the Kingdom fixed and inviolable, and to govern in accordance with it and with the laws.”

UNITED STATES.

The oath or Affirmation taken by the President of the United States before the entrance upon the execution of his office is prescribed by the Constitution of the United States (Article II., section 1), and is as follows:--

“I do solemnly swear (or affirm), that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect and defend the Constitution of the United States.”

FRANCE.

The President of the French Republic takes no Oath on the assumption of office.

AUSTRO-HUNGARY.

The Emperor on his Accession takes the Solemn Oath in the presence of both houses of the Reichsrath--

“To maintain the inviolability of the fundamental laws of the Kingdoms and Provinces represented in the Reichsrath and to rule in accordance with these and the common laws of the Empire.”

The Oath taken by the present Emperor as King of Hungary:

“We, Francis Joseph I., by the Grace of God, etc., as Hereditary and Apostolic King of Hungary and its Dependencies, swear by Almighty God, by the Virgin Mary, and by all the Saints of God, to maintain the Churches of God, the municipal liberties of Hungary and its Dependencies, as well as the ecclesiastical and lay inhabitants of those states of every rank, in their rights, prerogatives, freedom, privileges, laws, in their ancient, good and approved customs; to see that justice is done all: to maintain intact rights, constitution, and the legal independence and territorial integrity of Hungary and its Dependencies: to respect the laws of the late King Andreas II., not to alienate nor curtail the dominion of Hungary and its Dependencies, nor whatever belongs to these countries by right or title, but as far as possible to increase and extend them; and that we will do all that we are justly able to do for the common welfare, glory, and increase of these countries. So help us God and all His Saints.”

A statute of 1910, the Accession Declaration Act, “to alter the form of the Declaration required to be made by the Sovereign on Accession,” provides for the use of the following Oath by the King:--

“I (_here insert the name of the Sovereign_) do solemnly and sincerely in the presence of God profess, testify, and declare that I am a faithful Protestant, and that I will, according to the true intent of the enactments which secure the Protestant succession to the Throne of my Realm, uphold and maintain the said enactments to the best of my powers according to law.”

It is not uninteresting to learn the official position of the Sovereign as defined by statute (24 Henry VIII. c. 12.):

“Whereby divers sundry old authentic histories and chronicles, it is manifestly declared and expressed that this realm of England is an empire, and so hath been accepted in the world, governed by one supreme head and King, having dignity and royal estate of the Imperial Crown of the same:

“Unto whom a Body Politic, compact of all sorts and degrees of people, divided in terms by names of spiritualty and temporalty, been bounden and owen to bear, next to God, a natural and humble obedience.

“He being also institute and furnished by the goodness and suffrance of Almighty God with plenary, whole, and entire power, pre-eminence, authority, prerogative, and jurisdiction, to render and yield justice and final determination to all manner of folk, resiants or subjects within this his realm, in all causes, matters, debates, and contentions happening to occur, insurge, or begin within the limits thereof, without restraint or provocation to any foreign princes or potentates of the world.”

The monarch--Henry VIII.--in whose reign the above was passed swore a Coronation Oath[36] little different to the Oaths of Charles II. and James II., though the Reformation came in between. The Oath taken by Charles II. at his Coronation was worded thus:--

“Sir, will you grant and keep, and by your oath confirm to the people of England, the laws and customs to them granted by the Kings of England your lawful and religious predecessors, and namely the laws, customs, and franchises, granted by the glorious King, St. Edward, your predecessor, according to the laws of God, the true profession of the Gospel established in this Kingdom, agreeable to the prerogative of the Kings thereof, and the ancient customs of this realm?”

_King_: “I grant and promise to keep them.”

“Sir, will you keep peace and godly agreement (according to your power) both to God, Holy Church, the clergy, and the people?”

_King_: “I will keep it.”

“Sir, will you (to your power) cause law, justice, and discretion in mercy and truth to be executed to your judgment?”

_King_: “I will.”

“Sir, will you grant to hold and keep the laws and rightful customs which the commonalty of this your Kingdom have: will you defend and uphold them to the honour of God, so much as you lieth?”

_King_: “I grant and promise so to do.”

The Coronation Oath of His Majesty King George V.[37] conformed to the requirements of the William and Mary legislation--which has regulated the subject ever since its passage, with trifling variations.

The late King’s Accession Declaration, which gave religious offence to many of his Majesty’s subjects, has been abated, in pursuance of section 1, Accession Declaration Act, 1910.

“The declaration to be made, subscribed, and audibly repeated by the Sovereign under section 1 of the Bill of Rights and section 2 of the Act of Settlement shall be that set out in the Schedule to this Act instead of that referred to in the said sections.”[38]

FOOTNOTES

[36] CORONATION OATH OF HENRY VIII

“Will ye graunte and kepe to the people of England, the lawes and the custumes to theym, as of old tyme rightfull and deuoute Kings graunted, and the same ratefye and conserne by your othe and the spiritual lawes, custumes, and libertees graunted to the clergy and people by your noble predecessors and glorious King Seint Edward?”

_The King shall answer_: “I graunte and promytte.”

“Ye shall kepe after your strength and power to the Church of God, to the clergy and the people, hoole pees and goodely concorde.”

_The King shall answer_: “I shall kepe.”

“Ye shall make to be done after your strength and power equall and rightfull justice in all your Domes and Judgements, and discrecion with mercy and trouthe.”

_The King shall answer_: “I will do.”

“Do ye graunte the rightfull lawes and custumes to be holden, and promytte after your strength and power such lawes, as to the honor of God shall be chosen by your people, by you to be strengthend and defended?”

_The King shall answer_: “I graunte and promytte.”

[37] See Appendix F.

[38] _Vide supra._

APPENDIX A

DIVORCE

The following extracts from the evidence of Earl Russell and from the evidence of Mr. Atherley-Jones, K.C., before the Divorce Commission (December 19th, 1910), are not without some interest. They were discovered in _The Times_ report by accident, after the present author’s chapter on divorce had been written.

“Lord Russell, who was the first witness, said he had been interested in the question of divorce since 1890. He had studied the history of the question, the earlier part of which was naturally ecclesiastical; but as Parliament, in his opinion, was not concerned in legislation with ecclesiastical views he did not propose to go into them. In his view the State had no more right to dictate to him or his fellow-citizens what should be the nature of contracts of marriage from an ecclesiastical point of view than it had to deal with the education of his children, with the exercise of the franchise, or with other matters from an ecclesiastical point of view.

“The existing law suffered from three great defects:--

“(1) The premium placed upon adultery and the advantages given to those who are willing to commit it: (2) the practical denial of divorce to the poor; and (3) the provision of an illusory remedy in many cases of matrimonial hardship, such remedy itself being directly provocative of further adultery. In the case of the poor, the petitioner might be in law fully entitled to his remedy, but unless he could find a sum varying from £30 to £70 he must go without. This sum to be spent in one lump was probably out of reach of four-fifths of the husbands and nine-tenths of the wives of the country. The proceeding _in formâ papueris_ did not adequately meet the case. To his mind the obvious remedy was to give jurisdiction to the County Courts, manned by able Judges who habitually tried cases infinitely more difficult than those of divorce. In the vast majority of cases the evidence would be in the locality of the County Court, thus reducing the expense of witnesses. He supposed there should be some limit of income--say £500 a year--and he thought it would be fair to prohibit a petitioner in the County Court from seeking damages.

“The remedy of judicial separation had been extended and kept alive to satisfy the feeling that something ought to be done to protect the feelings of husbands and wives while not offending the ecclesiastical conscience. To his mind, JUDICIAL SEPARATION WAS A WICKED PROVISION OF THE LAW, WITH A VERY HIGH PROBABILITY OF ADULTERY BY THE SEPARATED

## PARTIES.

“The vexed question of divorce appeared to have slumbered for about 50 years. In May, 1902, he introduced a Bill in the House of Lords to increase the causes for divorce, to assimilate the practice of the Divorce Court to some extent to that of other divisions of the High Court, TO RELIEVE POOR PEOPLE BY ENABLING THEM TO BRING THEIR SUITS IN THE COUNTY COURT, and TO PROVIDE FOR LEGITIMATION BY SUBSEQUENT MARRIAGE and for marriage with the deceased wife’s sister, afterwards dealt with in a separate Bill.

“_The Chairman._--Would you recapitulate the grounds which you then proposed?

“The witness said the grounds, in addition to adultery, were:--That since the marriage the other party to the marriage has been guilty of cruelty to the petitioner; that the other party to the marriage is undergoing penal servitude for a term of not less than three years; that the other party to the marriage has during the year preceding the presentation of the petition been found or certified to be of unsound mind under the Lunacy Act, 1890; that during the three years preceding the presentation of the petition the parties to the marriage have lived apart, and that throughout that period either of the parties did not intend to resume cohabitation; that during the year preceding the presentation of the petition the parties to the marriage have lived apart, and that the other party concurs in the petition.

“He introduced three other Bills on a smaller scale providing for divorce in the case of desertion in 1903, 1905, and 1906. The first and second were unanimously rejected; three voted for the third; the Government whips told against the fourth, and it therefore received no support.

“There was much to object to in the procedure of the Divorce Court. He had heard no particular reason why pleadings in the Divorce Court should be sworn to, but if it was agreed that people were thereby debarred from launching baseless charges there was something to be said for it. It ought not to be necessary to swear a jury where the damages were agreed. The practice by which a wife could accuse a woman of adultery and the Court could find her guilty without the woman having notice of the proceedings or an opportunity of being heard was indefensible. He thought only the decrees of the Court with the names of the parties should be published. The suggestion that publicity was a deterrent was open to a good deal of doubt. It was a great hardship for a man or woman that all the details of an unsuccessful charge of adultery should be published. Even though acquitted, the damage done was irremediable. There was a growing tendency on the part of certain newspapers to treat the Divorce Court as the fountain head of sensational news.

“In considering legislation he refused to have regard to the religious views of particular sects. He admitted marriage to be a contract which affected not only the two parties to it, but the community, and he considered that the community was bound to have regard to the moral tendency of the marriage and divorce law and to the interests of the children. Such expressions as ‘the sanctity of marriage’ and “the sanctity of the home,” often used in this connection, he regarded as having no particular meaning in the case of adulterous homes or establishments where husband and wife had long been separated. He suggested, therefore, that the test which should be applied was whether any of the attributes of marriage were still in existence between husband and wife. Where the spouses had been separated for a term of years; where children had already made their home with one or the other; and where no element of the marriage tie remained except some financial relations and the legal bond, he suggested that the law should step in, and, recognizing the existing state of things, should sever the legal bond and leave the parties free to create new homes. Since the decision of “Jackson _v._ Jackson” the wife might leave her husband at the church door, and unless one or other of the parties took advantage of the privileges which the law reserved for adulterers, they would both remain compulsory celibates for the rest of their lives. He still thought the ideal state of the law would be that set out in the Bill he presented to the House of Lords in 1902. English legislation, however, always proceeded by piecemeal tentative advances, and probably, therefore, the simplest form of legislation would involve four advances:--(_a_) Equality of the sexes; (_b_) insanity a ground of separation; (_c_) all judicial separation to be capable of being turned into divorce _a vinculo_ on the motion of either party at the expiration of two years; and (_d_) County Court jurisdiction.

“_Judge Tindal Atkinson._--Would you give no damages against the co-respondent?

“_The Witness._--I think it rather a barbarous custom.

“Then you leave the co-respondent without punishment?--I do not think you leave him without punishment. He has social exposure. I think it is more desirable to give no damages than to suggest that a man can get another’s wife by paying for her.

“In reply to Mr. Burt, the witness said he did not think the Assize Courts a good alternative to the County Courts.”

EVIDENCE OF MR. ATHERLEY-JONES.

Mr. Atherley-Jones, K.C., M.P., said he prepared a Bill some years ago dealing with divorce. He came to the conclusion that subject to limitations the conditions which now enabled a person to obtain judicial separation should thenceforward be able to obtain divorce _a vinculo_. His view was that jurisdiction over certain areas might be conferred upon Judges selected from the County Courts.

APPENDIX B

CORONERS

The functions of a coroner are not, of course, peculiarly confined to death inquisitions. They extend to inquiries in connection with treasure trove, though the infrequency of such inquiries naturally helps to obscure the coroner’s dual _rôle_ from the general public. The following paragraph supplies a recent instance of an inquiry in respect of treasure trove:

AN INQUEST ON COINS

“The coroner for the Thorpe division of Suffolk is to hold an inquest to decide between two claims for the coins which were recently found on the shore at Thorpeness, Suffolk. The Treasury claim them as buried treasure, and the Receiver of Wrecks claims them as having been washed ashore.

“Two black cinerary urns containing bones, a red earthenware Roman vessel, and a black earthenware vessel, barrel-shaped and of drinking tumbler size, were discovered on Saturday. It is thought that the site of an old Roman burial-ground has been found. Throughout yesterday hundreds of people visited Thorpeness on foot and by cycle, in motorcars, and on horseback.”--_Daily Mail_, April 10th, 1911.

* * * * *

The senseless character, which a coroner’s inquest can sometimes assume, is well brought out in a South American mummy case of a dozen years ago:

“This institution”--the office of the coroner--“which some affect to consider moribund, seems on the contrary to exhibit both the fire of youth and the dignity of old age; see the South American mummy case (Aitken _v._ London and North Western Railway, _The Times_, December 11, 1901). This was an action against the railway company for damages for negligence in the carriage of a Peruvian mummy, which was broken in transit from South America to Belgium. In April, 1899, the package, sent from Liverpool, and addressed to ‘Maison de Melle, Belgium,’ had been opened at Broad Street. An inquest was held--verdict, ‘That the woman was found dead at the railway goods-station on April 15, and did die on some date unknown in some foreign country, probably South America, from some cause unknown. No proofs of a violent death are found. The body has been dried and buried in some foreign manner, probably sun-dried and cave-buried, and the jurors are satisfied that this body does not show any recent crime in this country, and that the deceased was unknown and about twenty-five years of age.’” (Mr. A. T. Carter, D.C.L.).

* * * * *

An interesting fiction, connected with death, at any rate, if not with coroners, though at a somewhat later period it would have come within their cognizance, arose through the provisions of William the Conqueror for the protection of his Norman followers. For every one killed, a fine was imposed upon the hundred in which the body was found. By the reign of Henry I., every dead man was presumed to be French, unless his Englishry could be proved.

“A very neat doctrine for Revenue purposes, as the records show, for if a stranger is found dead, who can prove that he is English?” (Mr. A. T. Carter, D.C.L.).

* * * * *

The following newspaper report merits some further publicity:

“At an inquest at Southwark, the need of an early operation in urgent circumstances was emphasised, and a doctor urged that the time had come for a reform of the law which makes it impossible to undertake any operation on a grievously injured child until its parents have been approached, persuaded, and their consent wrung from them.... A schoolboy of nine, John Joseph Huggins, of Haddon House, St. George’s Road, had been riding behind a van, according to the account of another small boy, and had fallen off before another van, of which a wheel had passed over his leg.

“Dr. Fritz Kahlenberg, of Guy’s Hospital, said that when the father was told that an operation was necessary he demurred for some time, but eventually gave his consent. The witness thought doctors should be able to operate if it was absolutely necessary without waiting for consent. Time was everything in many cases, and if consent had first to be obtained a life might be sacrificed. At Guy’s Hospital they endeavoured to get the parents’ consent, and, failing the parents, the nearest of kin. Some ignorant people had an idea that an operation was an experiment, made for the doctors’ amusement. In this case the operation was performed at night, and the surgeons were engaged until five in the morning.

“Asked by the coroner whether he had any suggestion to make, Dr. Kahlenberg said he thought that in such cases it should be enough if two or three doctors agreed on the necessity of an operation.

“The Coroner said that perhaps some members of Parliament would take the matter up. Dr. Kahlenberg, he observed, was suggesting a very serious change in the law.

“The inquiry was adjourned to enable the father to find witnesses of his son’s accident.”

APPENDIX C

THE ROYAL MARRIAGES ACT, 1772 12 Geo. 3, c. 11

_An Act for the better regulating of the future Marriages of the Royal Family_

MOST GRACIOUS SOVEREIGN,

Whereas your Majesty, from paternal affection to your own family, and from your royal concern for the future welfare of your people, and the honour and dignity of your crown, was graciously pleased to recommend to your Parliament to take into their serious consideration, whether it might not be wise and expedient to supply the defect of the laws now in being, and by some new provision more effectually to guard the descendants of his late Majesty King George the Second (other than the issue of princesses who have married, or who may hereafter marry, into foreign families), from marrying without the approbation of your Majesty, your heirs and successors, first had and obtained, we have taken this weighty matter into our serious consideration; and being sensible that marriages in the royal family are of the highest importance to the state, and that therefore the kings of this realm have ever been entrusted with the care and approbation thereof, and being thoroughly convinced of the wisdom and expediency of what your Majesty has thought fit to recommend upon this occasion; we, your Majesty’s most dutiful and loyal subjects, the lords spiritual and temporal, and commons, in this present Parliament assembled, do humbly beseech your Majesty that it may be enacted and be it enacted, etc.

1. No descendant of the body of his late Majesty King George the Second, male or female (other than the issue of princesses who have married, or may hereafter marry, into foreign families), shall be capable of contracting matrimony, without the previous consent of his Majesty, his heirs or successors, signified under the great seal and declared in council (which consent, to preserve the memory thereof, is hereby directed to be set out in the license and register of marriage, and to be entered in the books of the Privy Council); and [that] every marriage or matrimonial contract, of any such descendant, without such consent first had and obtained, shall be null and void to all intents and purposes whatsoever.

2. Provided always ... that in case any such descendant of the body of his late Majesty King George the Second, being above the age of twenty-five years, shall persist in his or her resolution to contract a marriage disapproved of, or dissented from, by the King, his heirs or successors; that then such descendant, upon giving notice to the King’s Privy Council, which notice is hereby directed to be entered in the books thereof, may, at any time from the expiration of twelve calendar months after such notice given to the Privy Council as aforesaid, contract such marriage; and his or her marriage with the person before proposed, and rejected, may be duly solemnized, without the previous consent of his Majesty, his heirs or successors; and such marriage shall be as good, as if this Act had never been made, unless both Houses of Parliament shall, before the expiration of the said twelve months, expressly declare their disapprobation of such intended marriage.

3. And ... every person who shall knowingly and wilfully presume to solemnize or to assist or be present at the celebration of any marriage with any such descendant, or in his or her making any matrimonial contract, without such consent as aforesaid first had and obtained, except in the case above mentioned, shall being duly convicted thereof, incur and suffer the pains and penalties ordained and provided by the Statute of Provision and Premunire made in the sixteenth year of the reign of King Richard the Second.

APPENDIX D

EXECUTIONS

The accompanying letter from Mr. A. Chichele Plowden, one of the Metropolitan Police Magistrates, appeared in _The Times_ for December 20, 1910.

EXECUTIONS

_To the Editor of The Times_

SIR,--The interesting letters which have lately appeared in your columns on the above subject were bound sooner or later to resolve themselves into the one question of really national importance--_viz._, whether or not capital punishment by hanging is to be the last word of our civilization in dealing with the crime of murder.

It is to the credit of Sir Henry Smith, whose letter you published on Friday, that he is quick to recognize that this is the only thing that signifies. Nor can it be said that there is any ambiguity whatever in his own views on the subject.

Sir Henry is quite clear that all sympathy with murderers, even in exceptional cases where they “suffer terribly,” is thrown away. Generally speaking, they suffer very little--less than many innocent people who die in their beds. Nevertheless the rope remains as the great deterrent. The rope it is that is anticipated with terror.

If this is, as I believe it to be, a correct summary of Sir Henry’s views, perhaps you will allow me, as a confirmed disbeliever in the efficacy of capital punishment, to make one or two comments, not the less true because they must often have been made before. People, of course, are at liberty to think and believe that there would be more murders than there are if hanging were abolished; but except from analogy with foreign countries, notably, perhaps, with France, where capital punishment, after being abolished, has recently been restored, there is absolutely no evidence, nor in the nature of things can there be any, to show that the rope is a deterrent.

If there are any whom the fear of it has deterred from murder, they are and must remain an unknown quantity. All we know, as distinguished from conjecture, is that crimes for which capital punishment used to be the penalty have sensibly diminished, and that murders continue to afflict society in quite sufficient numbers to unnerve the more timid members of the community--the fear of death notwithstanding.

It is a popular fallacy to regard a murderer as the worst of criminals. The real truth is that in many cases it is hardly fair to describe him as a criminal at all. There is nothing inconsistent, human nature being what it is, in a man of blameless antecedents being driven in a moment of frenzy into committing an act of violence from which his whole soul would recoil in his saner moments.

No one who has not been through the fire can tell what may be the effect on his self-control of a long course of studied insults and provocation on the part of a worthless wife against her husband persevered in day by day, for months and even years at a stretch.

Sir Henry Smith, in his virtuous indignation with Crippen, makes no allowance for desperate circumstances like these. He is angry with Crippen on account of his coolness in the witness-box, which he calls an outrage, and he apparently regards it as a distinct aggravation of his conduct that he should have sworn to love and cherish at the altar the wife whom he subsequently put to death.

It is somewhat amazing to me that considerations such as these should weigh for a moment in any just appreciation of Crippen’s character.

They seem to me absolutely irrelevant.

What Crippen actually did, and for which he suffered death, was to kill a wife whom he hated for the sake of a woman whom he loved. Probably of all the murders that are committed under the sun, in one country or another, there is no more common type of murder than this.

It was the irony of Crippen’s fate that he did not meet No. 2 until after he had met No. 1. Had such been his good fortune he would probably have lived a life not better nor worse than his neighbours, and have enjoyed with the best of them the reputation of a contented, law-abiding citizen.

It must not be supposed from these observations that, the law of the land being what it is, Crippen deserved a lesser punishment than he received. All I am concerned with is to dispute that any fear of his fate by hanging had any effect on his mind or intentions when he resolved upon the murder of his wife.

It is quite clear that the deterrent effect was _nil_, as it was in the case of Dickman, of Cream, and the host of other murderers, who, with a full appreciation that they may ultimately be hung, have nevertheless not hesitated to do away with the lives of their victims, and to run the risk.

I am convinced from such experience as I have had of Criminal Courts, extending over many years, that what a man murderously inclined really dreads is not death, but pain.

The spectre of death, though it can always be conjured up, is too remote and shadowy to have much effect on the nerves of a man in the enjoyment of a full and vigorous health. Not so with pain. There is no imagination so dull that it cannot take in the terrors of the “cat;” and I believe if such a punishment could be made part of the sentence, even without abolishing capital punishment, the deterrent effect would be unmistakable.

I think even Crippen’s courage, wonderful as it was, would have quailed on that dark and wintry morning had he known that he would have had to endure a flogging before he was hung. And had he been asked which he feared most--the physical pain of the lash or the death to follow--can any one doubt what his answer would have been?

I am, Sir, your obedient servant, A. CHICHELE PLOWDEN.

Marylebone Police Court.

* * * * *

“The Home Secretary states in a printed reply to Mr. Palmer that of the 24 men and 4 women sentenced to death in 1910, 16 men were executed, as compared with 27 men and 4 women sentenced to death in 1909, 19 men being executed. In 1908, 23 men and 2 women were sentenced to death, 12 men suffering the extreme penalty. One man sentenced to death in 1908 was executed in 1909.” (_Daily Newspaper._)

APPENDIX E

AN ENGLISH LEGITIMATION BILL

Since the chapter on legitimation was written, the writer has come across a House of Commons Bill, which substantially endorses his views on the subject. It is as follows:--

_A Bill to Amend the Law of Husband and Wife_ A.D. 1910

WHEREAS it is expedient to amend the law of husband and wife:

Be it therefore enacted by the King’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:--

_Power of wife to petition for divorce_

=1.= Notwithstanding anything in the Matrimonial Causes Act, 1857, or any other Act contained, it shall be lawful for any wife to present a petition to the Court praying that her marriage shall be dissolved on the ground that since the celebration thereof her husband has been guilty of adultery.

For the purposes of this section the expression “Court” shall mean the Court for Divorce and Matrimonial Causes.

_Guardianship of children_

=2.= A wife shall be the joint guardian with her husband of any children of the marriage, and, in every case arising under any statute or otherwise, shall have an equal power with the husband in any matter concerning their education, upbringing, or welfare.

In case of disagreement between the parties either party may apply to the Court, who shall make such order as, having regard to all the circumstances before it and to the general well-being of the children, it shall think proper. There shall be no appeal from such order except by leave of the Court, but the Court may at any time, at the instance of either party, with or without hearing fresh evidence, rescind or vary such order in such manner as it shall think proper.

_Children to be legitimised by marriage_

=3.= Marriage before and after _the passing of this Act_ shall operate to legitimise any children previously born to the parties to such marriage.

_Short Title_

=4.= This Act may be cited as the Marriage Law Amendment Act, 1910.

APPENDIX F

THE CRIMINAL APPEAL ACT, 1907

COURT OF CRIMINAL APPEAL

=1.= (1) There shall be a Court of Criminal Appeal, and the Lord Chief Justice of England and eight judges of the King’s Bench Division of the High Court, appointed for the purpose by the Lord Chief Justice with the consent of the Lord Chancellor for such period as he thinks desirable in each case, shall be the judges of that court.

(2) For the purpose of hearing and determining appeals under this Act, and for the purpose of any other proceedings under this Act, the Court of Criminal Appeal shall be summoned in accordance with directions given by the Lord Chief Justice of England with the consent of the Lord Chancellor and the court shall be duly constituted if it consists of not less than three judges and of an uneven number of judges.

If the Lord Chief Justice so directs, the court may sit in two or more divisions.

The court shall sit in London except in cases where the Lord Chief Justice gives special directions that it shall sit at some other place.

(3) The Lord Chief Justice, if present, and in his absence the senior member of the court, shall be president of the court.

(4) The determination of any question before the Court of Criminal Appeal shall be according to the opinion of the majority of the members of the court hearing the case.

(5) Unless the court direct to the contrary in cases where, in the opinion of the court, the question is a question of law on which it would be convenient that separate judgments should be pronounced by the members of the court, the judgment of the court shall be pronounced by the president of the court or such other member of the court hearing the case as the president of the court directs, and no judgment with respect to the determination of any question shall be separately pronounced by any other member of the court.

[39](6) If in any case the director of public prosecutions or the prosecutor or defendant obtains the certificate of the Attorney-General that the decision of the Court of Criminal Appeal involves a point of law of exceptional public importance, and that it is desirable in the public interest that a further appeal should be brought, he may appeal from that decision to the House of Lords, but subject thereto the determination by the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be final, and no appeal shall lie from that court to any other court.

(7) The Court of Criminal Appeal shall be a superior court of record, and shall, for the purposes of and subject to the provisions of this Act, have full power to determine, in accordance with this Act, any questions necessary to be determined for the purpose of doing justice in the case before the court.

(8) Rules of court shall provide for securing sittings of the Court of Criminal Appeal, if necessary, during vacation.

(9) Any direction which may be given by the Lord Chief Justice under this section may, in the event of any vacancy in that office, or in the event of the incapacity of the Lord Chief Justice to act from any reason, be given by the senior judge of the Court of Criminal Appeal.

=2.= There shall be a Registrar of the Court of Criminal Appeal (in this Act referred to as the Registrar) who shall be appointed by the Lord Chief Justice from among the Masters of the Supreme Court

## acting in the King’s Bench Division, and shall be entitled to such

additional salary (if any), and be provided with such additional staff (if any), in respect of the office of registrar as the Lord Chancellor, with the concurrence of the Treasury, may determine.

The senior Master of the Supreme Court shall be the first Registrar.

RIGHT OF APPEAL AND DETERMINATION OF APPEALS.

=3.= A person convicted on indictment may appeal under this Act to the Court of Criminal Appeal--

(_a_) against a conviction on any ground of appeal which involves a question of law alone, and

(_b_) with the leave of the Court of Criminal Appeal or upon the certificate of the Judge who tried him that it is a fit case for appeal against his conviction on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal, and

(_c_) with the leave of the Court of Criminal Appeal against the sentence passed on his conviction unless the sentence is one fixed by law.

=4.= (1) The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal.

Provided that the court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has occurred.

(2) Subject to the special provisions of this Act, the Court of Criminal Appeal shall, if they allow an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.

(3) On an appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict (whether more or less severe) in substitution therefor as they think ought to have been passed, and in any other case shall dismiss the appeal.

=5.= (1) If it appears to the Court of Criminal Appeal that an appellant, though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the court may either affirm the sentence passed on the appellant at the trial, or pass such sentence in substitution therefor as they think proper, and as may be warranted in law by the verdict on the count or part of the indictment on which the court consider that the appellant has been properly convicted.

(2) Where an appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Criminal Appeal that the jury must have been satisfied of the facts which proved him guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.

(3) Where on the conviction of the appellant the jury have found a special verdict, and the Court of Criminal Appeal consider that a wrong conclusion has been arrived at by the court before which the appellant has been convicted on the effect of that verdict, the Court of Criminal Appeal may, instead of allowing the appeal, order such conclusion to be recorded as appears to the court to be in law required by the verdict, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law.

(4) If on any appeal it appears to the Court of Criminal Appeal that, although the appellant was guilty of the act or omission charged against him, he was insane at the time the act was done or omission made so as not to be responsible according to law for his actions, the court may quash the sentence passed at the trial and order the appellant to be kept in custody as a criminal lunatic under the Trial of Lunatics Act, 1883, in the same manner as if a special verdict had been found by the jury under that Act.

=6.= The operation of any order for the restitution of any property to any person made on a conviction on indictment, and the operation in case of any such conviction, of the provisions of subsection (1) of section twenty-four of the Sale of Goods Act, 1893, as to the re-vesting of the property in stolen goods on conviction, shall (unless the Court before whom the conviction takes place direct to the contrary in any case in which, in their opinion, the title to the property is not in dispute) be suspended--

(_a_) in any case until the expiration of ten days after the date of conviction, and

(_b_) in cases where notice of appeal or leave to appeal is given within ten days after the date of conviction, until the determination of the appeal;

and in cases where the operation of any such order, or the operation of the said provisions, is suspended until the determination of the appeal, the order or provisions, as the case may be, shall not take effect as to the property in question if the conviction is quashed on appeal. Provision may be made by rules of court for securing the safe custody of any property, pending the suspension of the operation of any such order of the said provisions.

(2) The Court of Criminal Appeal may by order annul or vary any order made on a trial for the restitution of any property to any person, although the conviction is not quashed; and the order, if annulled, shall not take effect, and, if varied, shall take effect as so varied.

PROCEDURE

=7.= (1) Where a person convicted desires to appeal under this Act to the Court of Criminal Appeal, or to obtain the leave of that Court to appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within ten days of the date of conviction. Such rules shall enable any convicted person to present his case and his argument in writing instead of by oral argument if he so desires. Any case or argument so presented shall be considered by the court.

Except in the case of a conviction involving sentence of death, the time within which notice of appeal or notice of an application for leave to appeal may be given, may be extended at any time by the Court of Criminal Appeal.

(2) In the case of a conviction involving sentence of death or corporal punishment--

(_a_) the sentence shall not in any case be executed until after the expiration of the time within which notice of appeal or an application for leave to appeal may be given under this section, and

(_b_) if notice is so given, the appeal or application shall be heard and determined with as much expedition as practicable, and the sentence shall not be executed until after the determination of the appeal, or, in cases where an application for leave to appeal is finally refused, of the application.

=8.= The judge or chairman of any court before whom a person is convicted shall, in the case of an appeal under this Act against the conviction or against the sentence, or in the case of an application for leave to appeal under this Act, furnish to the Registrar, in accordance with rules of court, his notes of the trial; and shall furnish to the Registrar in accordance with rules of court a report giving his opinion upon the case or upon any point arising in the case.

=9.= For the purposes of this Act, the Court of Criminal Appeal may, if they think it necessary or expedient in the interest of justice,--

(_a_) order the production of any document, exhibit, or other thing connected with the proceedings, the production of which appears to them necessary for the determination of the case, and

(_b_) if they think fit order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the court, whether they were or were not called at the trial, or order the examination of any such witnesses to be conducted in manner provided by rules of court before any judge of the court or before any officer of the court or justice of the peace or other person appointed by the court for the purpose, and allow the admission of any depositions so taken as evidence before the court, and

(_c_) if they think fit receive the evidence, if tendered, of any witness (including the appellant) who is a competent but not compellable witness, and, if the appellant makes an application for the purpose, of the husband or wife of the appellant, in cases where the evidence of the husband or wife could not have been given at the trial except on such an application, and

(_d_) where any question arising on the appeal involves prolonged examination of documents or accounts, or any scientific or local investigation, which cannot in the opinion of the court conveniently be conducted before the court, order the reference of the question in manner provided by rules of court for inquiry and report to a special commissioner appointed by the court, and act upon the report of any such commissioner so far as they think fit to adopt it, and

(_e_) appoint any person with special expert knowledge to act as assessor to the court in any case where it appears to the court that such special knowledge is required for the proper determination of the case;

and exercise in relation to the proceedings of the court any other powers which may for the time being be exercised by the Court of Appeal on appeals in civil matters, and issue any warrants necessary for enforcing the orders or sentences of the court: Provided that in no case shall any sentence be increased by reason or in consideration of any evidence that was not given at the trial.

=10.= The Court of Criminal Appeal may at any time assign to an appellant a solicitor and counsel or counsel only in any appeal or proceedings preliminary or incidental to an appeal in which, in the opinion of the court, it appears desirable in the interests of justice that the appellant should have legal aid, and that he has not sufficient means to enable him to obtain that aid.

=11.= (1) An appellant, notwithstanding that he is in custody, shall be entitled to be present, if he desires it, on the hearing of his appeal, except where the appeal is on some ground involving a question of law alone, but, in that case and on an application for leave to appeal and on any proceedings preliminary or incidental to an appeal, shall not be entitled to be present, except where rules of court provide that he shall have the right to be present, or where the court gives him leave to be present.

(2) The power of the court to pass any sentence under this Act may be exercised notwithstanding that the appellant is for any reason not present.

=12.= It shall be the duty of the Director of Public Prosecutions to appear for the Crown on every appeal to the Court of Criminal Appeal under this Act, except so far as the solicitor of a Government department, or a private prosecutor in the case of a private prosecution, undertakes the defence of the appeal, and the Prosecution of Offences Act, 1879, shall apply as though the duty of the Director of Public Prosecutions under this section were a duty under section two of that Act, and provision shall be made by rules of court for the transmission to the Director of Public Prosecutions of all such documents, exhibits, and other things connected with the proceedings as he may require for the purpose of his duties under this section.

=13.= (1) On the hearing and determination of an appeal or any proceedings preliminary or incidental thereto under this Act no costs shall be allowed on either side.

(2) The expenses of any solicitor or counsel assigned to an appellant under this Act, and the expenses of any witnesses attending on the order of the court or examined in any proceedings incidental to the appeal, and of the appearance of an appellant on the hearing of his appeal or on any proceedings preliminary or incidental to the appeal, and all expenses of and incidental to any examination of witnesses conducted by any person appointed by the court for the purpose, or any reference of a question to a special commissioner appointed by the court, or of any person appointed as assessor to the court, shall be defrayed, up to an amount allowed by the court, but subject to any regulations as to rates and scales of payment made by the Secretary of State, in the same manner as the expenses of a prosecution in cases of felony.

=14.= (1) An appellant who is not admitted to bail shall, pending the determination of his appeal, be treated in such manner as may be directed by prison rules within the meaning of the Prison Act, 1898.

(2) The Court of Criminal Appeal may, if it seems fit, on the application of an appellant, admit the appellant to bail pending the determination of his appeal.

(3) The time during which an appellant, pending the determination of his appeal, is admitted to bail, and subject to any directions which the Court of Criminal Appeal may give to the contrary on any appeal, the time during which the appellant, if in custody, is specially treated as an appellant under this section, shall not count as part of any term of imprisonment or penal servitude under his sentence, and, in the case of an appeal under this Act, any imprisonment or penal servitude under the sentence, of the appellant, whether it is the sentence passed by the court of trial or the sentence passed by the Court of Criminal Appeal, shall, subject to any directions which may be given by the Court as aforesaid, be deemed to be resumed or to begin to run, as the case requires, if the appellant is in custody, as from the day on which the appeal is determined, and, if he is not in custody, as from the day on which he is received into prison under the sentence.

(4) Where a case is stated under the Crown Cases Act, 1848, this section shall apply to the person in relation to whose conviction the case is stated as it applies to an appellant.

(5) Provision shall be made by prison rules within the meaning of the Prison Act, 1898, for the manner in which an appellant, when in custody, is to be brought to any place at which he is entitled to be present for the purposes of this Act, or to any place to which the Court of Criminal Appeal or any judge thereof may order him to be taken for the purpose of any proceedings of that court, and for the manner in which he is to be kept in custody while absent from prison for the purpose; and an appellant whilst in custody in accordance with those rules shall be deemed to be in legal custody.

=15.= (1) The registrar shall take all necessary steps for obtaining a hearing under this Act of any appeals or applications, notice of which is given to him under this Act, and shall obtain and lay before the court in proper form all documents, exhibits, and other things relating to the proceedings in the court before which the appellant or applicant was tried which appear necessary for the proper determination of the appeal or application.

(2) If it appears to the registrar that any notice of an appeal against a conviction purporting to be on a ground of appeal which involves a question of law alone does not show any substantial ground of appeal, the registrar may refer the appeal to the court for summary determination, and, where the case is so referred, the court may, if they consider that the appeal is frivolous or vexatious, and can be determined without adjourning the same for a full hearing, dismiss the appeal summarily, without calling on any persons to attend the hearing or to appear for the Crown thereon.

(3) Any documents, exhibits, or other things connected with the proceedings on the trial of any person on indictment, who, if convicted, is entitled or may be authorised to appeal under this Act, shall be kept in the custody of the court of trial in accordance with rules of court made for the purpose, for such time as may be provided by the rules, and subject to such power as may be given by the rules for the conditional release of any such documents, exhibits, or things from that custody.

(4) The registrar shall furnish the necessary forms and instructions in relation to notices of appeal or notices of application under this Act to any person who demands the same, and to officers of courts, governors of prisons, and such other officers or persons as he thinks fit, and the governor of a prison shall cause those forms and instructions to be placed at the disposal of prisoners desiring to appeal or to make any application under this Act, and shall cause any such notice given by a prisoner in his custody to be forwarded on behalf of the prisoner to the registrar.

(5) The registrar shall report to the court or some judge thereof any case in which it appears to him that, although no application has been made for the purpose, a solicitor and counsel or counsel only ought to be assigned to an appellant under the powers given to the Court by this Act.

=16.= (1) Shorthand notes shall be taken of the proceedings at the trial of any person on indictment who, if convicted, is entitled or may be authorised to appeal under this Act, and, on any appeal or application for leave to appeal, a transcript of the notes, or any part thereof, shall be made if the registrar so directs, and furnished to the registrar for the use of the Court of Criminal Appeal or any judge thereof: Provided that a transcript shall be furnished to any party interested upon the payment of such charges as the Treasury may fix.

(2) The Secretary of State may also, if he thinks fit in any case, direct a transcript of the shorthand notes to be made and furnished to him for his use.

(3) The cost of taking any such shorthand notes, and of any transcript where a transcript is directed to be made by the registrar or by the Secretary of State, shall be defrayed, in accordance with scales of payment fixed for the time being by the Treasury, out of moneys provided by Parliament, and rules of court may make such provision as is necessary for securing the accuracy of the notes to be taken and for the verification of the transcript.

=17.= The powers of the Court of Criminal Appeal under this Act to give leave to appeal, to extend the time within which notice of appeal or of an application for leave to appeal may be given, to assign legal aid to an appellant, to allow the appellant to be present at any proceedings in cases where he is not entitled to be present without leave, and to admit an appellant to bail, may be exercised by any judge of the Court of Criminal Appeal in the same manner as they may be exercised by the Court, and subject to the same provisions; but, if the judge refuses an application on the part of the appellant to exercise any such power in his favour, the appellant shall be entitled to have the application determined by the Court of Criminal Appeal as duly constituted for the hearing and determining of appeals under this Act.

=18.= (1) Rules of court for the purposes of this Act shall be made, subject to the approval of the Lord Chancellor, and so far as the rules affect the governor or any other officer of a prison, or any officer having the custody of an appellant, subject to the approval also of the Secretary of State, by the Lord Chief Justice and the judges of the Court of Criminal Appeal, or any three of such judges, with the advice and assistance of the Committee hereinafter mentioned. Rules so made may make provision with respect to any matter for which provision is to be made under this Act by rules of court, and may regulate generally the practice and procedure under this Act, and the officers of any court before whom an appellant has been convicted, and the governor or other officers of any prison or other officer having the custody of an appellant and any other officers or persons, shall comply with any requirements of those rules so far as they affect those officers or persons, and compliance with those rules may be enforced by order of the Court of Criminal Appeal.

(2) The committee hereinbefore referred to shall consist of a chairman of quarter sessions appointed by a Secretary of State, the Permanent Under Secretary of State for the time being for the Home Department, the Director of Public Prosecutions for the time being, the Registrar of the Court of Criminal Appeal, and a clerk of assize, and a clerk of the peace appointed by the Lord Chief Justice, and a solicitor appointed by the President of the Law Society for the time being, and a barrister appointed by the General Council of the Bar. The term of office of any person who is a member of the Committee by virtue of appointment shall be such as may be specified in the appointment.

(3) Every rule under this Act shall be laid before each House of Parliament forthwith, and, if any address is presented to His Majesty by either House of Parliament within the next subsequent thirty days on which the House has sat next after any such rule is laid before it, praying that the rule may be annulled, His Majesty in Council may annul the rule, and it shall thenceforth be void, but without prejudice to the validity of anything previously done thereunder.

SUPPLEMENTAL

=19.= Nothing in this Act shall affect the prerogative of mercy, but the Secretary of State on the consideration of any petition for the exercise of His Majesty’s mercy, having reference to the conviction of a person on indictment or to the sentence (other than sentence of death) passed on a person so convicted, may, if he thinks fit, at any time either--

(_a_) refer the whole case to the Court of Criminal Appeal, and the case shall then be heard and determined by the Court of Criminal Appeal as in the case of an appeal by a person convicted, or

(_b_) if he desires the assistance of the Court of Criminal Appeal on any point arising in the case with a view to the determination of the petition, refer that point to the Court of Criminal Appeal for their opinion thereon, and the Court shall consider the point so referred and furnish the Secretary of State with their opinion thereon accordingly.

=20.= (1) Writs of error, and the powers and practice now existing in the High Court in respect of motions for new trials or the granting thereof in criminal cases, are hereby abolished.

(2) This Act shall apply in the case of convictions on criminal informations and coroners’ inquisitions and in cases where a person is dealt with by a court of quarter sessions as an incorrigible rogue under the Vagrancy Act, 1824, as it applies in the case of convictions on indictments, but shall not apply in the case of convictions on indictments or inquisitions charging any peer or peeress, or other person claiming the privilege of peerage, with any offence not now lawfully triable by a court of assize.

(3) Notwithstanding anything in any other Act, an appeal shall lie from a conviction on indictment at common law in relation to the non-repair or obstruction of any highway, public bridge, or navigable river in whatever court the indictment is tried, in all respects as though the conviction were a verdict in a civil action tried at assize, and shall not lie under this Act.

(4) All jurisdiction and authority under the Crown Cases Act, 1848, in relation to questions of law arising in criminal trials which is transferred to the judges of the High Court by section forty-seven of the Supreme Court of Judicature Act, 1873, shall be vested in the Court of Criminal Appeal under this Act, and in any case where a person convicted appeals under this Act against his conviction on any ground of appeal which involves a question of law alone, the Court of Criminal Appeal may, if they think fit, decide that the procedure under the Crown Cases Act, 1848, as to the statement of a case should be followed, and require a case to be stated accordingly under that

## Act in the same manner as if a question of law had been reserved.

=21.= In this Act, unless the context otherwise requires--

The expression “appellant” includes a person who has been convicted and desires to appeal under this Act, and

The expression “sentence” includes any order of the court made on conviction with reference to the person convicted or his wife or children, and any recommendation of the court as to the making of an expulsion order in the case of a person convicted, and the power of the Court of Criminal Appeal to pass a sentence includes a power to make any such order of the court or recommendation, and a recommendation so made by the Court of Criminal Appeal shall have the same effect for the purposes of section three of the Aliens Act, 1905, as the certificate and recommendation of the convicting Court.

=22.= The Acts specified in the schedule of this Act are hereby repealed to the extent mentioned in the third column of that schedule.

=23.= (1) This Act may be cited as the Criminal Appeal Act, 1907.

(2) This Act shall not extend to Scotland or Ireland.

(3) This Act shall apply to all persons convicted after the eighteenth day of April, nineteen hundred and eight, but shall not affect the rights, as respects appeal, of any persons convicted on or before that date.

(The enactments affected by the schedule of repeal are four in number, namely, the Treason Act, 1695, the Crown Cases Act, 1848, and the two Supreme Court of Judicature Acts of 1875, and 1881, respectively.)

FOOTNOTE

[39] It was under this section that the notorious murderer, S. Morrison, or Morris Stein, endeavoured to carry his appeal to the House of Lords, but the Attorney-General (Sir Rufus Isaacs) refused the necessary certificate.

APPENDIX G

THE CORONATION OATH OF KING GEORGE V

The Coronation Oath of King George V. is identical with that of Queen Victoria save in respect of reference to the Church of Ireland:--

THE OATH

¶ His Majesty having already on Monday, the 6th day of February, 1911, in the presence of the two Houses of Parliament, made and signed the Declaration prescribed, the Archbishop shall, after the Sermon is ended, go to the King, and standing before him, administer the Coronation Oath, first asking the King,

Sir, is your Majesty willing to take the Oath?

¶ And the King answering,

I am willing,

¶ The Archbishop shall minister these questions; and the King, having a book in his hands, shall answer each question severally as follows:

_Archbishop._ Will you solemnly promise and swear to govern the people of this United Kingdom of _Great Britain_ and _Ireland_, and the Dominions thereto belonging, according to the Statutes in Parliament agreed on, and the respective Laws and Customs of the same?

_King._ I solemnly promise so to do.

_Archbishop._ Will you to your power cause Law and Justice, in Mercy, to be executed in all your judgments?

_King._ I will.

_Archbishop._ Will you to the utmost of your power maintain the Laws of God, the true profession of the Gospel, and the Prostestant Reformed Religion established by law? And will you maintain and preserve inviolably the settlement of the Church of _England_, and the doctrine, worship, discipline, and government thereof, as by law established in _England_? And will you preserve unto the Bishops and Clergy of _England_, and to the Churches there committed to their charge, all such rights and privileges, as by law do or shall appertain to them, or any of them?

_King._ All this I promise to do.

[Sidenote: The Bible to be brought;]

¶ Then the King arising out of his chair, supported as before, and assisted by the Lord Great Chamberlain, the Sword of State being carried before him, shall go to the Altar, and there being uncovered, make his solemn Oath in the sight of all the people, to observe the premisses: laying his right hand upon the Holy Gospel in the great Bible (which was before carried in the Procession and is now brought from the Altar by the Archbishop, and tendered to him as he kneels upon the steps), saying these words:

The things which I have here before promised, I will perform, and keep.

So help me God.

[Sidenote: And a silver Standish.]

¶ Then the King shall kiss the Book, and sign the Oath.

* * * * *

It is, perhaps, interesting to note that neither the Proclamation, Accession, Declaration, or Coronation, of a King in any way improves his legal kingship: he is King from the moment his predecessor’s life is extinct. Hence the legal saying, “The King never dies.” It was anomalous for certain official persons in the City of London to address his Majesty the King as “Prince,” in condoling with him on the death of King Edward VII., immediately after the event. It was likewise technically incorrect to refer to the decease of “the King of Portugal and of the Crown Prince”--at the time of the assassinations. The latter survived his father by a minute or so, and he, therefore, died a King.

* * * * *

The accompanying paragraph from the _Coronation Service_, by the Rev. Joseph H. Pemberton, contains some information:

“As to the authority by which the Coronation Service is from time to time revised. An order is made by the King in Council directing the Archbishop of Canterbury to prepare a ‘Form and Order,’ due attention being given to the wishes of the Sovereign on points of detail. But the Archbishop has also a duty to perform to the Church, that nothing shall be omitted which through many generations has been held as essential to the validity of the Service, a Service by which, through the administration of the outward and visible sign of Holy Unction, the inward and spiritual grace of the Holy Spirit is conveyed to the Sovereign for the office and work of a King or Queen in this realm under the Catholic Church of Christ. For it cannot be too often repeated in these days that the Coronation of a King is not a civil ceremony, but a religious service, for the purpose of the setting apart of a person for a particular and holy office. The King at his Accession becomes the people’s accepted Sovereign, at his Coronation he becomes the Lord’s Anointed, holding his divine office as the representative, the agent, to the people of this realm, of the King of kings and Lord of lords.”

APPENDIX H

THE POOR PRISONERS’ DEFENCE ACT, THE PERJURY BILL, AND THE CRIMINAL EVIDENCE ACT

I. THE POOR PRISONERS’ DEFENCE ACT

An extremely short enactment, interesting from several points of view, is that which deals with the defence of poor prisoners. In itself it is scarcely anomalous, though the necessity for a poor prisoner to satisfy the committing justices or the judge of a court of assize, or chairman of a court of quarter sessions that he, the prisoner, comes within the meaning of the Act, sometimes tends to produce difficulty and obstruction. The Act reads:--

AN ACT TO MAKE PROVISION FOR THE DEFENCE OF POOR PRISONERS.

(14th August, 1903)

Be it enacted by the King’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:--

=1.= (1) Where it appears, having regard to the nature of the defence set up by any poor prisoner, as disclosed in the evidence given or statement made by him before the committing justices, that it is desirable in the interests of justice that he should have legal aid in the preparation and conduct of his defence, and that his means are insufficient to enable him to obtain such aid--

(_a_) the committing justices, upon the committal of the prisoner for trial, or

(_b_) the judge of a court of assize or chairman of a court of quarter sessions, at any time after reading the depositions,

may certify that the prisoner ought to have such legal aid, and thereupon the prisoner shall be entitled to have a solicitor and counsel assigned to him, subject to the provisions of this Act.

(2) The expenses of the defence, including the cost of a copy of the depositions, the fees of solicitor and counsel, and the expenses of any witnesses shall be allowed and paid in the same manner as the expenses of a prosecution in cases of indictment for felony, subject, nevertheless, to any rules under this Act and to any regulations as to rates or scales of payment which may be made by one of His Majesty’s Principal Secretaries of State.

=2.= Rules for carrying this Act into effect may be made in the same manner and subject to the same conditions as Rules under the Prosecution of Offences Act, 1879.

=3.= In this Act--

“Prisoner” includes a person committed for trial on bail.

“Committing justices” includes a magistrate of the police courts of the metropolis and a stipendiary magistrate.

“Chairman” includes recorder or deputy recorder or deputy chairman.

=4.= This Act shall not extend to Scotland or Ireland.

=5.= This Act may be cited as the Poor Prisoners’ Defence Act, 1903, and shall come into operation on the first day of January one thousand nine hundred and four.

The Act is straightforward and clear in its wording, but it seems to leave something unsaid in its provision for establishing the prisoner’s insufficiency of means to maintain his defence. The functionary who has to decide whether or not the prisoner’s poverty is genuine does not seem to be given any special standard by which to govern his decision. The responsibility of using public funds where there may be no real justification must influence him towards excessive caution. It would be better to make it perfectly plain what would constitute justification. A judge or quasi-judicial functionary, may be guided by his own intelligence, so far as he can apply it to the prisoner’s circumstances, but it may thus involve more time and consideration to arrive at a proper estimate of the truth than the case is worth. On the other hand, the prisoner and the police may, and probably do, conflict in their statements. What is to be done? There is no solution, unless it be, where the prisoner has got as far as quarter sessions or the assize, to set the man’s case back, pending the submission of an affidavit from a police officer deputed to make reasonable inquiry into the prisoner’s means and resources. Where there is no evidence of funds put by, an affidavit to this effect should satisfy the recorder, or judge, in the matter of providing for the defence. In a case where the prisoner requests legal aid in the police court, a similar principle could be applied. A police affidavit would be useful as a record.

II. THE PERJURY BILL

A short Bill “to consolidate and simplify the law relating to perjury and kindred offences,” to be known to future generations as the Perjury Act, 1911, has recently left the printer. Its sponsor is the Lord High Chancellor, and its provisions are not without interest to the general public. It is made up of nineteen clauses and a schedule. It is proposed to here transcribe it bodily. The Bill, after reciting the formula of Royal and Parliamentary enactment, runs as follows:--

=1.=--(1) If any person lawfully sworn as a witness or as an interpreter in a judicial proceeding wilfully makes a statement material in that proceeding, which he knows to be false or does not believe to be true, he shall be guilty of perjury, and shall on conviction thereof on indictment be liable to penal servitude for a term not exceeding seven years, or to imprisonment with or without hard labour for a term not exceeding two years, or to a fine or to both such penal servitude or imprisonment and fine.

(2) The expression “judicial proceeding” includes a proceeding before any court, tribunal, or person having by law power to hear, receive, and examine evidence on oath.

(3) Where a statement made for the purposes of a judicial proceeding is not made before the tribunal itself, but is made on oath before a person authorised by law to administer an oath to the person who makes the statement, and to record or authenticate the statement, it shall for the purposes of this section be treated as having been made in a judicial proceeding.

(4) A statement made by a person lawfully sworn in England or Ireland for the purposes of a judicial proceeding--

(_a_) in another part of His Majesty’s dominions, or

(_b_) in a British tribunal lawfully constituted in any place by sea or land outside His Majesty’s dominions, or

(_c_) in a tribunal of any foreign state,

shall for the purpose of this section be treated as a statement made in a judicial proceeding in England or Ireland.

(5) Where for the purposes of a judicial proceeding in England or Ireland, a person is lawfully sworn under the authority of an Act of Parliament--

(_a_) in any other part of His Majesty’s dominions, or

(_b_) before a British tribunal or a British officer in a foreign country, or within the jurisdiction of the Admiralty of England,

a statement made by such person so sworn as aforesaid (unless the Act of Parliament under which it was made otherwise specifically provides) shall be treated for the purposes of this section as having been made in the judicial proceeding in England or Ireland for the purposes whereof it was made.

(6) The question whether a statement on which perjury is assigned was material is a question of law to be determined by the court of trial.

=2.= If any person--

(1) being required or authorised by law to make any statement on oath for any purpose, and being lawfully sworn (otherwise than in a judicial proceeding) wilfully makes a statement which is material for that purpose and which he knows to be false or does not believe to be true, or

(2) wilfully uses any false affidavit for the purposes of the Bill of Sale Act, 1878, as amended by any subsequent enactment,

he shall be guilty of a misdemeanour, and on conviction thereof on indictment shall be liable to penal servitude for a term not exceeding seven years or to imprisonment, with or without hard labour, for a term not exceeding two years, or to a fine or to both such penal servitude or imprisonment and fine.

=3.= (1) If any person--

(_a_) for the purpose of procuring a marriage, or a certificate or license for marriage, knowingly and wilfully makes a false oath, or makes or signs a false declaration, notice or certificate required under any Act of Parliament for the time being in force relating to marriage, or

(_b_) knowingly and wilfully makes, or knowingly and wilfully causes to be made, for the purpose of being inserted in any register of marriage, a false statement as to any particular required by law to be known and registered relating to any marriage.

(_c_) forbids the issue of any certificate, or license for marriage by falsely representing himself to be a person whose consent to the marriage is required by law, knowing such representation to be false,

he shall be guilty of a misdemeanour and on conviction thereof on indictment shall be liable to penal servitude for a term not exceeding seven years or to imprisonment, with or without hard labour, for a term not exceeding two years, or to a fine or to both such penal servitude or imprisonment and fine.

(2) No prosecution for knowingly and wilfully making a false declaration for the purpose of procuring any marriage out of the district in which the parties or one of them dwell shall take place after the expiration of months from the solemnization of the marriage to which the declaration refers.

=4.= (1) If any person--

(_a_) wilfully makes any false answer to any question put to him by any registrar of births or deaths relating to the particulars required to be registered concerning any birth or death, or wilfully gives to any such registrar any false information concerning any birth or death or the cause of death, or

(_b_) wilfully makes any false certificate or declaration under or for the purposes of any Act relating to the registration of births or deaths, or knowing any such certificate or declaration to be false, uses the same as true or gives or sends the same as true to any person, or

(_c_) wilfully makes, gives or uses any false statement or declaration as to a child born alive as having been still-born, or as to the body of a deceased person or a still-born child in any coffin, or falsely pretends that any child born alive was still-born, or

(_d_) makes any false statement with intent to have the same inserted in any register of births or deaths:

shall be guilty of a misdemeanour and shall be liable--

(i) on conviction thereof on indictment to penal servitude for a term not exceeding seven years, or to imprisonment with or without hard labour for a term not exceeding two years, or to a fine instead of either of the said punishments; and

(ii) on summary conviction thereof to a penalty not exceeding ten pounds:

(2) A prosecution on indictment for an offence against this section shall not be commenced more than three years after the commission of the offence.

=5.= If any person knowingly and wilfully makes (otherwise than on oath) a statement false in a material particular, and the statement is made--

(_a_) in a statutory declaration, or

(_b_) in an abstract account, balance sheet, book, certificate, declaration, entry, estimate, inventory, notice, report, return, or other document which is authorised or required to make, attest, or verify, by (under or for the purposes of) any public general Act of Parliament for the time being in force, or

(_c_) in any oral declaration or oral answer which he is required to make by (under or in pursuance of) any public general Act of Parliament for the time being in force,

he shall be guilty of a misdemeanour and shall be liable on conviction thereof on indictment to imprisonment with or without hard labour, for any term not exceeding two years, or to a fine or to both such imprisonment and fine.

=6.= If any person--

(_a_) procures or attempts to procure himself to be registered on any register or roll kept under or in pursuance of any public general Act of Parliament for the time being in force of persons qualified by law to practise any vocation or calling, or

(_b_) procures or attempts to procure a certificate of the registration of any person on any such register or roll as aforesaid,

by wilfully making or producing or causing to be made or produced either verbally or in writing, any declaration, certificate, or representation which he knows to be false or fraudulent, he shall be guilty of a misdemeanour and shall be liable on conviction thereof on indictment to imprisonment for any term not exceeding twelve months, or to a fine, or to both such imprisonment and fine.

=7.= (1) Every person who aids, abets, counsels, procures, or suborns another person to commit an offence against this Act shall be liable to be proceeded against, indicted, tried and punished as if he were a principal offender.

(2) Every person who incites or attempts to procure or suborn another person to commit an offence against this Act shall be guilty of a misdemeanour, and on conviction thereof on indictment shall be liable to imprisonment, or to a fine, or to both such imprisonment and fine.

=8.= Where an offence against this Act or any offence punishable as perjury under any other Act of Parliament is committed in any place either on sea or land outside the United Kingdom the offender may be proceeded against, indicted, tried, and punished in any county or place in England where he was apprehended or is in custody as if the offence had been committed in that county or place; and for all purposes incidental to or consequential on the trial or punishment of the offence, it shall be deemed to have been committed in that county or place.

=9.= (1) Where any of the following authorities, namely, a judge of or person presiding in a court of record, or a petty sessional court, or any justice of the peace sitting in special sessions, or any sheriff or his lawful deputy before whom a writ of inquiry or a writ of trial is executed is of opinion that any person has in the course of a proceeding before that authority been guilty of perjury, the authority may order the prosecution of that person for such perjury in case there shall appear to be reasonable cause for such prosecution and may commit him, or admit him to bail, to take his trial at the proper court, and may require any person to enter into a recognizance to prosecute or give evidence against the person whose prosecution is so ordered, and may give the person so bound to prosecute a certificate of the making of the order for the prosecution, for which certificate no charge shall be made.

(2) An order made or a certificate given under this section shall be given in evidence for the purpose or in the course of any trial or a prosecution resulting therefrom.

=10.= A court of quarter sessions shall not have jurisdiction to try an indictment for any offence against this Act, or for an offence which under any enactment for the time being in force is declared to be perjury or to be punishable as perjury, or as subornation of perjury.

=11.= The provisions of the Vexatious Indictments Act, 1859, and the Acts amending the same, shall apply in the case of any offence punishable under this Act, and in the case of any offence which under any other enactment for the time being in force, is declared to be perjury or subornation of perjury or is made punishable as perjury or as subordination of perjury, in like manner as if all the said offences were enumerated in section one of the said Vexatious Indictments Act, 1859: Provided that in that section a reference to this Act shall be substituted for the reference therein to the Criminal Procedure Act, 1851.

=12.= (1) In an indictment--

(_a_) for making any false statement or false representation punishable under this Act, or

(_b_) for unlawfully, wilfully, falsely, fraudulently, deceitfully, maliciously, or corruptly taking, making, signing, or subscribing any oath, affirmation, solemn declaration, statutory declaration, affidavit, deposition, notice, certificate, or other writing,

it is sufficient to set forth the substance of the offence charged, and before which court or person (if any) the offence was committed without setting forth the proceedings or any part of the proceedings in the course of which the offence was committed, and without setting forth the authority of any court or person before whom the offence was committed.

(2) In an indictment for aiding, abetting, counselling, suborning, or procuring any other person to commit any offence hereinbefore in this section mentioned, or for conspiring with any other person, or with attempting to suborn or procure any other person, to commit any such offence, it is sufficient--

(_a_) where such an offence has been committed, to allege that offence, and then to allege that the defendant procured the commission of that offence, and

(_b_) where such offence has not been committed, to set forth the substance of the offence charged against the defendant without setting forth any matter or thing which it is unnecessary to aver in the case of an indictment for a false statement or false representation punishable under this Act.

=13.= A person shall not be liable to be convicted of any offence against this Act, or of any offence declared by any other Act to be perjury or subornation of perjury or to be punishable as perjury or subornation of perjury solely upon the evidence of one witness as to the falsity of any statement alleged to be false.

=14.= On a prosecution

(_a_) for perjury alleged to have been committed on the trial of an indictment for felony or misdemeanour, or

(_b_) for procuring or suborning the commission of perjury on any such trial,

the fact of the former trial shall be sufficiently proved by the production of a certificate containing the substance and effect (omitting the formal parts) of the indictment and trial purporting to be signed by the clerk of the court, or other person having the custody of the records of the court where the indictment was tried, or by the deputy of the clerk or other person, without proof of the signature or official character of the clerk or person appearing to have signed the certificate.

=15.= (1) For the purposes of this Act the forms and ceremonies used in administering an oath are immaterial, if the court or person before whom the oath is taken has power to administer an oath for the purpose of verifying the statement in question, and if the oath has been administered in a form and with ceremonies which the person taking the oath has accepted without objection, or has declared to be binding on him.

(2) In this Act--

The expression “oath” in the case of persons for the time being allowed by law to affirm or declare instead of swearing, includes “affirmation” and “declaration,” and the expression “swear” in the like case includes “affirm” and “declare”; and

The expression “statutory declaration” means a declaration made by virtue of the Statutory Declarations Act, 1835, or of any Act, Order in Council, rule or regulation applying or extending the provisions thereof; and

The expression “indictment” includes “criminal information.”

=16.= (1) Where the making of a false statement is not only an offence under this Act, but also by virtue of some other Act is a corrupt practice or subjects the offender to any forfeiture or disqualification or to any penalty other than penal servitude, or imprisonment, or fine, the liability of the offender under this Act shall be in addition to and not in substitution for his liability under such other Act.

(2) Nothing in this Act shall apply to a statement made without oath by a child under the provisions of the Prevention of Cruelty to Children Act, 1904, and the Children Act, 1908.

(3) Where the making of a false statement is by any other Act, whether passed before or after the commencement of this Act, made punishable on summary conviction proceedings may be taken either under such other Act or under this Act:

Provided that where such an offence is by any Act passed before the commencement of this Act, as originally enacted, made punishable only on summary conviction, it shall remain only so punishable.

=17.= The enactments specified in the schedule of this Act are hereby repealed, so far as they apply to England, to the extent specified in the third column of that schedule.

=18.= This Act shall not extend to Scotland or Ireland.

=19.= This Act may be cited as the Perjury Act, 1911, and shall come into operation on the first day of January, nineteen hundred and twelve.

The schedule attached to the new Bill--which comes to an end, so far as the provisions are concerned, with clause 19--repeals one hundred and thirty-two legislative measures, the first one to go, being 52 Hen. 8. c. 9.--“Agenst maintenance and embracery byeng of titles, etc.”

The Perjury Bill promises to crush out many anomalous conditions, not the least of which are those connected with the facility afforded at present to the supply of false data to registrars of births and deaths, more particularly in respect to births. Under existing conditions, by a passive method of _suppressio veri_, as opposed to _expressio falsi_, the most grossly inaccurate entries may be recorded in the registers. For a person who voluntarily sets himself to speak what is false, there is no limit to the length to which he may go, without let or hindrance. By the force of the new Bill, this state of affairs will come to an abrupt and timely end. It is high time, too, for the records of England are filled with the most unwarrantable entries.

Where two persons are cohabiting together as man and wife, and a child is born, the chances are the father, if he goes to record the birth, will merely be asked the maiden name of his wife. If he is a good-natured man, he may answer in all truth that her name was Joan Stuart, or whatever the name may be. He is not asked whether he _is_ actually married in law, or when and where he _was_ married, nor what evidence he has to show that any marriage ever took place. Admittedly, the lack of insistence on the part of the authorities is benign in one way, but it leaves loop-holes for all sorts of abuses. The Perjury Bill threatens to stop them up.

In sub-section (2), clause 5, of the Perjury Bill, there is the line, “after the expiration _of months_ from the solemnization of the marriage.” What “the expiration of months” means, Heaven only knows! Either by accident or intention an anomaly will be created unless His Majesty’s Stationery Office, or the Printers to the King’s Most Excellent Majesty, will assume responsibility and correct the error. As the Bill stands, “the expiration of months” may mean any number of months, which is grotesque on the face of it.

III. THE CRIMINAL EVIDENCE ACT

The Criminal Evidence Act, 1898, comes out of chronological order here, but it is none the worse for that. It might have been placed first of all, instead of granting precedence to the Poor Prisoners’ Defence Act, 1903, though in the present arrangement of several short Acts of Parliament, various considerations have exercised the author. Then, too, for instance, the Perjury Bill, 1911, quite the newest thing in legislation, supplies a form of introduction to the Criminal Evidence Act, which has given great and uninterrupted scope to half a generation of liars. It is the constant complaint of judges that a criminal when giving evidence on his own behalf rarely tells the truth, or anything approaching the truth. Comment on the subject flows freely from the Bench, with every possible cause. If criminals were not allowed to “speak for themselves,” at least the occupants of the dock could tell no lies. Still, there are so many technical fictions permitted nowadays that one half expects a man to lie with _sang froid_, in an attempt to save his own skin. This is scarcely morality, but it is a practical and true way to look upon an evil which is akin to nature. On one of those rare occasions, when a murderer is caught red-handed, he will enter a plea of “Not Guilty,” as a matter of course. The plea is a fiction in itself, but an even greater one is to be found in the amendment or alteration of a plea of “Guilty” to “Not Guilty,” the most absurd anomaly sanctioned in the English courts, one due, it may be explained, to the tolerance of the judiciary.

Owing to the shortness of the Criminal Evidence Act, and owing also to its clearness of meaning, it may here be inserted intact, without misgiving. It is made up of only seven brief sections, the first of which begins,

=1.= Every person charged with an offence, and the wife or husband, as the case may be, of the person so charged, shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person. Provided as follows:--

(_a_) a person so charged shall not be called as a witness in pursuance of this Act except upon his own application.

(_b_) The failure of any person charged with an offence, or of the wife or husband, as the case may be, of the person so charged, to give evidence shall not be made the subject of any comment by the prosecution.

(_c_) The wife or husband of the person charged shall not, save as in this Act mentioned, be called as a witness in pursuance of this Act except upon the application of the person so charged.

(_d_) Nothing in this Act shall make a husband compellable to disclose any communication made to him by his wife during the marriage, or a wife compellable to disclose any communication made to her by her husband during the marriage.

(_e_) A person charged and being a witness in pursuance of this Act may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged.

(_f_) A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is a bad character, unless--

(i) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged, or

(ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution, or

(iii) he has given evidence against any other person charged with the same offence.

(_g_) Every person called as a witness in pursuance of this Act shall, unless otherwise ordered by the court, give his evidence from the witness box or other place from which the other witnesses give their evidence.

(_h_) Nothing in this Act shall affect the provisions of section eighteen of the Indictable Offences Act, 1848, or any right of the person charged to make a statement without being sworn.

=2.= Where the only witness to the facts of the case called by the defence is the person charged, he shall be called as a witness immediately after the close of the evidence for the prosecution.

=3.= In cases where the right of reply depends upon the question whether evidence has been called for the defence, the fact that the person charged has been called as a witness shall not of itself confer on the prosecution the right of reply.

=4.= (1) The wife or husband of a person charged with an offence under any enactment mentioned in the schedule to this Act may be called as a witness either for the prosecution or defence and without the consent of the person charged.

(2) Nothing in this Act shall affect a case where the wife or husband of a person charged with an offence may at common law be called as a witness without the consent of that person.

=5.= In Scotland, in a case where a list of witnesses is required, the husband or wife of a person charged shall not be called as a witness for the defence, unless notice be given in the terms prescribed by section thirty-six of the Criminal Procedure (Scotland) Act, 1887.

=6.= (1) This Act shall apply to all criminal proceedings, notwithstanding any enactment in force at the commencement of this Act, except that nothing in this Act shall affect the Evidence Act, 1877.

(2) But this Act shall not apply to proceedings in courts martial unless so applied--

(_a_) as to courts martial under the Naval Discipline Act, by general orders made in pursuance of section sixty-five of that Act, and

(_b_) as to courts martial under the Army Act by rules made in pursuance of section seventy of that Act.

=7.= (1) This Act shall not extend to Ireland.

(2) This Act shall come into operation on the expiration of two months from the passing thereof.

(3) This Act may be cited as the Criminal Evidence Act, 1898.

It seems a farce to put a criminal in the position of a witness, and unless he has his wits about him he may have good cause to regret taking advantage of the Act. The evidence of an accused person must, of necessity, be discounted in the mind of the judge, and very properly, too, when it is almost invariably false, or, at best, materially tainted with falsehood. The instinct of self-preservation is strong in every man, however lowly his sphere; accuse a public servant of drunkenness while on duty, and he will, with the aid of his associates, manufacture evidence of his invariable sobriety! It is the same thing with persons accused of crime. Accuse them, and they will fight to escape. That they are guilty is a detail. The Criminal Evidence Act merely gives them an additional crutch on which to lean, _i.e._, the license of personal explanation. That the Act is based on benevolence and a desire to do justice, and for such reasons is worthy of respect, one cannot doubt, but candour compels one to submit, also, that it affords a fertile opportunity for perjury on the part of a criminal, and for an unnecessary waste of time.

Since the trial, at the Central Criminal Court, of the murderer, “Stinie” Morrison, or Morris Stein, the Criminal Evidence Act has attracted a good deal of special comment. The bulk of this comment has been directed against that portion of subsection (_b_), section 1, which, where “the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution,” authorises the prosecution to question the accused as to his past crimes, convictions, etc.

“Defending counsel may again, as in Rex v. Morrison,” says a legal writer in _The Daily Mail_, “feel it his duty to attack the characters of some of the witnesses for the Crown. At once the prisoner is rendered liable to have his whole dossier--generally a damaging one--laid before the jury. That is an immense step forward to the Continental system, where the judge’s interrogatories always begin with a catechism on the prisoner’s previous crimes.”

The same matter has brought some remarks from the law correspondent of _The Pall Mall Gazette_, “If there is to be legislation on the subject, one suggestion may be hazarded. It is that, whatever other amendments in the Criminal Evidence Act experience may demand, an exception from the stringent rule should be made in capital cases. When the penalty is death, admit nothing but ‘the facts’ and exclude bad character from them.”

Even _The Law Times_ takes up much the same attitude as the lay journals. “It has always been our boast,” it states, “so far as the administration of our criminal law is concerned, that a prisoner must be deemed to be innocent until he is proved guilty and that the onus is upon the prosecution to prove his guilt. The effect of the Act of 1898 has been imperceptibly and gradually to change that position, and to a large extent nowadays the onus of proving his innocence in many cases in fact falls upon the accused.”

Transcriber’s Notes

• Italic text represented with surrounding _underscores_.

• Bold text represented with surrounding =equal signs=.

• Small Caps converted to ALL CAPS.

• Obvious typographic errors silently corrected.

• Variations in hyphenation and spelling left as in the original.

• Footnotes renumbered consecutively and moved to the end of their respective chapters. There are two intentionally duplicated footnote references that use the same footnote source.