Anomalies of the English law

Samuel Beach Chester

Of the Middle Temple, Esquire, Barrister-at-Law; Fellow of the Royal Geographical Society; Companion of the Military Order of the Loyal Legion of the United States, Commandery of Pennsylvania; Member of the (U.S.) Military Service Institution, Governor’s Island, New York Harbour.

Boston Little, Brown, And Company 1912

Printed In Great Britain

Contents

Page

Introduction. A Satire On Barristers, By Charles Lever 9

Chapter I Divorce 19

Chapter II Death And Burial 44

Chapter III Wills 67

Chapter IV Libel And Slander 81

Chapter V Imprisonment For Debt 97

Chapter VI The Need For The Right Of Property In Surnames 116

Chapter VII Literary Censorship 131

Chapter VIII Capital Punishment, Murder And Suicide 145

Chapter IX Legitimation 165

Chapter X Criminal Appeal And The Ball Case 176

Chapter XI Client, Solicitor, And Counsel 185

CHAPTER XII THE MORALITY BILL, ACCESSION, AND CORONATION OATHS AND DECLARATIONS 203

Appendices.

Appendix A Divorce 229

Appendix B Coroners 233

Appendix C The Royal Marriages Act, 1772 237

Appendix D Executions 239

Appendix E An English Legitimation Bill 243

Appendix F The Criminal Appeal Act, 1907 244

Appendix G The Coronation Oath Of King George V 262

APPENDIX H THE POOR PRISONERS’ DEFENCE ACT, THE PERJURY BILL, AND THE CRIMINAL EVIDENCE ACT 265

I DEDICATE THIS WRITING TO MY FRIEND, William H. Cozens-Hardy, OF LINCOLN’S INN.

S. B. C.

Anomalies Of The English Law

Introduction[1]

“Authors have long got the credit of being the most accomplished persons going--thoroughly conversant not only with the features of every walk of life, but, also, with their intimate sentiments, habits of thought, and modes of expression. Now, I have long been of opinion that, in all these respects, lawyers are infinitely their superiors. The author chooses his characters as you choose your dish, or your wine at dinner--he takes what suits, and leaves what is not available to his purpose. He then fashions them to his hand--finishing off this portrait, sketching that one--now bringing certain figures into strong light, anon throwing them into shadow: they are his creatures, who must obey him while living, and even die at his command.

“Now, the lawyer is called upon for all the narrative and descriptive powers of his art, at a moment’s notice, without time for reading or preparation; and worse than all, his business frequently lies among the very arts and callings his taste is most repugnant to. One day he is to be found creeping, with tortoise slowness, through all the wearisome intricacy of an equity case--the next, he is borne along in a torrent of indignant eloquence, in defence of some Orange processionist or some Ribbon associate; now he describes, with the gravity of a landscape gardener, the tortuous windings of a mill-stream: then, he expatiates in Lytton Bulwerisms over the desolate hearth and broken fortunes of some deserted husband. In one court he attempts to prove that the elderly gentleman, whose life was insured for a thousand at the Phœnix, was instrumental to his own decease, for not eating cayenne with his oysters; in another, he shows, with palpable clearness, that being stabbed in the body, and having the head fractured, is a venial offence--merely the result of ‘political excitement’ in a high-spirited and warm-hearted people.... These are all clever efforts, which demand consummate powers of him who makes them; but what are they to that profound and critical research with which he seems, instinctively, to sound the depths of every scientific walk in life, and every learned profession.

“Hear him in a lunacy case--listen to the deep and subtle distinctions he draws between symptoms of mere eccentricity and erring intellect--remark how insignificant the physician appears in the case, who has made these things the study of a life long--hear how the barrister confounds him with a hail-storm of technicals--talking of the pineal gland as if it were an officer of the court, and of atrophy of the cerebral lobes, as if he were speaking of an attorney’s clerk. Listen to him in a trial of supposed death by poison; what a triumph he has there, particularly if he be a junior barrister--how he walks undismayed among all the tests for arsenic; how little he cares for Marsh’s apparatus and Scheele’s discoveries--hydro-sulphates, peroxydes, iodurates, and proto-chlorides are as familiar to him as household words. You would swear that he was nursed at a glass retort, and sipped his first milk through a blow-pipe.

“Like a child who thumps the keys of a pianoforte, and imagines himself a Liszt or Moschelles, so does your barrister revel amid the phraseology of a difficult science, pelting the witnesses with his blunders, and assuring the jury that their astonishment means ignorance. Nothing in anatomy is too deep--nothing in chemistry too subtle; no fact in botany too obscure--no point in metaphysics too difficult. Like Dogberry, these things are to him but the gift of God, and he knows them at his birth. Truly, the Chancellor is a powerful magician; and the mystic words by which he calls a gentleman to the Bar must have some potent spell within them.

“The youth you remember as if it were yesterday, the lounger at evening parties, or the chaperon of riding damsels to the Phœnix, comes forth now a man of deep and consummate acquirement--he, whose chemistry went no further than the composition of a ‘tumbler of punch,’ can now perform the most difficult experiments of Orfila or Davy, or explain the causes of failure in a test that has puzzled the scientific world for half a century. He knows the precise monetary value of a deserted maiden’s affections--he can tell you the exact sum, in bank notes, that a widow will be knocked down for, when her heart has been subject to but a feint attack by Cupid. With what consummate skill, too, he can show that an indictment is invalid, when stabbing is inserted for cutting; and when the Crown prosecutor has been deficient in his descriptive anatomy, what a glorious field for display is opened to him.

“Then, to be sure, what droll fellows they are!--how they do quiz the witness as he sits trembling on the table; what funny allusions to his habits of life, his age, his station; turning the whole battery of their powers of ridicule against him--ready, if he ventured to retort, to throw themselves on the protection of the court! And truly, if a little Latin suffice for a priest, a little wit goes very far in a law court. A joke is a universal blessing; the judge, who, after all, is only ‘an old lawyer,’ loves it from habit: the jury, generally speaking, are seldom in such good company, and they laugh from complaisance; and the Bar joins in the mirth, on that great reciprocity principle, which enables them to bear each other’s dulness, and dine together afterwards.

“What set me first on this train of thought was a trial I lately read, where a cross action was sustained for damage at sea--the owners of the brig _Durham_ against the _Aurora_, a foreign vessel, and _vice versâ_, for the result of a collision at noon, on the 14th of October. It appeared that both vessels had taken shelter in the Humber from stress of weather, nearly at the same time--that the _Durham_, which preceded the Prussian vessel, ‘clewed up her topsails, and dropped her anchor _rather_ suddenly: and the _Aurora_ being in the rear, the vessels came into collision.’ The question, therefore, was, whether the _Durham_ came to anchor too precipitately, and in an unseamanlike manner; or, in other words, whether, when the ‘_Durham_ clewed up topsails and let go her anchor, the _Aurora_ should not have luffed up, or got sternway on her,’ etc.

“Nothing could possibly be more instructive, nor anything scarcely more amusing, than the lucid arguments employed by the counsel on both sides. The learned Thebans, who would have been sick in a ferry-boat, spoke as if they had circumnavigated the globe. Stay-sails, braces, top-gallants, clews, and capstans they hurled at each other, like _bon bons_ at a carnival; and this naval engagement lasted from daylight to dark. Once only, when the judge ‘made it noon,’ for a little reflection, did they cease conflict, to renew the strife afterwards with more deadly daring, until, at last, so confused were the witnesses--the plaintiff, defendant, and all, that they half wished they had gone to the bottom, before settling their differences in the Admiralty Court.

“This was no common occasion for the display of these powers so peculiarly the instinctive gift of the Bar, and certainly they used it with all the enthusiasm of a _bonne bouche_.... How I trembled for the _Aurora_, when an elderly gentleman, with a wart on his nose, assured the court that the _Durham_ had her topsail backed ten minutes before the anchor fell; and then, how I feared again for the _Durham_, as a thin man in spectacles worked the Prussian about in a double-reefed main-sail, and stood round in stays so very beautifully. I thought myself at sea, so graphic was the whole description--the waves splashed and foamed around the bulwarks, and broke in spray upon the deck; the wind rattled amid the rigging, the bulkheads creaked, and the good ship heaved heavily in the trough of the sea, like a mighty monster in its agony. But my heart quailed not--I knew that Dr. Lushington was at the helm, and Dr. Haggard had the look-out ahead--I felt that Dr. Robinson stood by the lee braces, and Dr. Addison waited, hatchet in hand, to cut away the mainmast! These were comforting reflections, until I was once more enabled to believe myself in Her Majesty’s High Court of Admiralty.

“Alas! ye Coopers, ye Marryats, ye Chamiers--ye historians of storm and sea-fight, how inferior are your triumphs compared with the descriptive eloquence of a law court. Who can portray the broken heart of blighted affection like Charles Phillips in a breach of promise case? What was Scott compared to Scarlett?--how inferior is Dickens to Counsellor O’Driscoll?--here are the men, who, without the trickery of trade, ungilt, unlettered, and unillustrated, can move the world to laughter and tears. They ask no aid from Colburn, nor from Cruikshank--they need not ‘Brown’ nor Longman, Heaven-born warriors, doctors, chemists, and anatomists; deep in every art, learned in every science--mankind is to them an open book, which they read at will, and con over at leisure--happy country, where your talents are so available that they can be had for the asking.”

Footnote

[1] A satire on barristers, by Charles Lever.

Chapter I

Divorce[2]

The administration of justice in this country is to some extent idealised by the world at large. Certainly, there is honesty of purpose in the word and act of every English judge. But where the law is wrong the most painstaking and conscientious judge can hardly be right. Then, again, for example, where a judge is compelled to combine three distinct and separate jurisdictions in one, as in Probate, Divorce, and Admiralty, the machinery of justice must sometimes tend to clog. It is also utterly incongruous for the same judge to be expected to perfect himself in three subjects so widely different in character. What, for instance, could be further removed from the troubles of a man and his wife than the navigation of ships on the high sea? Probably a liability to collision is the only point in common! Probate is less remote in one sense and equally so in another. It is almost grossly anomalous to run these three branches of law and legal training in the same division, presided over by the same judges. Probate should be shifted to the Chancery Division, Admiralty to the King’s Bench, and Divorce might be allowed a little court of its own.

Before 1858 matrimonial causes were in the jurisdiction of the Ecclesiastical Courts, which by the grace of God and the law of the land are now almost limited to the punishment of ecclesiastical black sheep--a sufficient occupation, perhaps, in itself! Actual divorce, by the way, was only possible in those days by means of a Private Act of Parliament. (This method still applies in Ireland.)

But to come to the law as it now stands, it seems to contain at least two great imperfections, namely, the judicial separation and the dreadful tie between an erring husband and an erring wife. In cases of the latter description, the practice is to prevent the parties to the predicament from mending their ways or improving their hope of happiness, whatever form that hope may take. It also frequently leads to the misfortunes of a third person, who might otherwise escape on a conscionable arrangement. _A_ is the husband of _B_. _A_ commits adultery and his wife does likewise. They then discover their common shortcomings, with the consequence that they forthwith become violently opposed to one another and separate. What is the net result? They are tied together for life; _B_ soon becomes desperate; presently, she encourages many lovers and her last vestige of self-respect disappears. Henceforth, she is a _déclassée_. _A_, on the other hand, ultimately settles his affection on one woman, otherwise blameless in character. He cannot marry her and she drifts into concubinage. Had some means existed to bring the unfortunate marriage of _A_ and _B_ to an end at the time of their original delinquencies, all of these later developments might have been, almost certainly would have been, avoided. The usual inability, therefore, for an erring husband and an erring wife to legally dissolve their union, sows the seed of increasing injustice, which may, and probably does, extend to the punishment of persons who were not parties to the primary condition of adultery. A divorce should be obtainable, as of course, on the application of either party to a marriage, after one year’s domiciliary separation, whether such separation is due to mutual transgression, or merely to the lesser evils of married life. Under such a condition of affairs, the community would be bound to benefit.

The judicial separation of to-day is one of the most unsatisfactory phases of matrimonial law and practice. Let us, for example, assume that _C_ is the husband of _D_. _C_ is a drunkard, a man of loose morals and disagreeable temperament. _D_ is the reverse in every possible respect, a woman of culture, youth and beauty. Her moral sense is exemplary and her conduct is always quite beyond reproach. After a most unpleasant legal experience, she obtains a judicial separation. Her position becomes isolated; she has a living husband, whose name she bears, she has attractions, but she can hold out no hope to a suitor, for she is still legally tied to the man from whom she is legally separated. Could a greater anomaly exist? It is unfair in the extreme. The most she can do, within the narrow limit of her outlook, is to resign herself to a physically unfair position, and await her husband’s death, which may not occur until her youth and beauty have vanished and she, too, confronts the grave. This is the practical outcome of many judicial separations, which ought in all justice to be done away with. Abolition, with an easier method of securing a divorce proper, is the need of the moment.

With all due respect to the King’s Proctor, a somewhat thankless office, the interval--one may call it the probationary interval--which must elapse between the granting of a decree _nisi_ (or preliminary decree) and the granting of the decree absolute (or final decree) should be removed. In Scotland, there is only one decree necessary in a divorce suit. That one decree is final. The law in this country should be altered to resemble the Scotch law in this respect, at any rate. The _entr’acte_ which separates the decree _nisi_ from the decree absolute is generally a great hardship on a perfectly innocent party. It inflicts an un-English penalty which might well be deleted from the law of the land. Why should some drooping little petitioner of the feminine gender, already distraught with the aftermath of acute anxiety, be subjected to a fresh period of tension, prolonged for another six months? Somehow, one wonders why such a flagrant misconception of true justice should remain on the statute book. Of course, were it not for such anomalies, there would be no reason to look upon divorce law as a subtle and mysterious creation of the Devil, or as an involved and merciless contribution to penal literature, but, in its existing state, a good deal of harsh criticism is perfectly fair.

The law of divorce should be a set of social rules applied to the law of nature, and little else. Complicated procedure, or difficulty in obtaining bare justice, is entirely beyond the mark in this branch of jurisprudence. The Crown--one hesitates to say “the State” in these days of attempted Socialism--could confer a practical benefit on the public by reducing the whole law of divorce to a few simple issues, free from the ramifications of torment and irritation which apply at present. A Royal Commission is not needed to unconsciously hide, rather than to uncover, the discrepancies of the law. The process of wallowing in volumes of evidence is confusing to say the least. It is a process, nevertheless, which, it may not be impertinent to assume, is the main fault with the Royal Commission on Divorce. It has sat and sat and sat again. It has heard the evidence of persons theoretically qualified to give evidence on the subject. It has listened, not without impatience, perhaps, to every sort of opinion, some, by the way, of a praiseworthy, and even ingenious character, but a frank contemplation of life as it is would have resulted in a better point of view than all the formal procedure on earth combined. An absence of sufficient consideration, so far as the purely human side of a problem is concerned, must inevitably lead to failure where the subject is divorce--of all things. For instance, as the law stands, what is the result of tying the hands of an erring husband and an erring wife? One of two things. Either the loose condition already illustrated, or the connivance of the parties in question, in the matter of a petition. Both are hopelessly undesirable, even wicked, and, consequently, no honest support can be extended to a continuance of such a legal anomaly. A law which gives any inducement to vice, directly or indirectly, or makes vice an alternative to uncomfortable virtue, unexpected virtue, should be definitely altered to meet the demands of the social system.

There are many other variations arising from the existing state of the law. Suppose a married woman commits adultery and her husband takes action to secure a divorce. The six months interval between the decree _nisi_ and the decree absolute may just frustrate a co-respondent’s desire to marry the respondent in time to give his name to a child of the _liaison_. All these things should be considered, indeed _would be_ considered, if the members of the Divorce Commission were to deal with the whole question from a human standpoint, rather than from a standpoint of apathetic contemplation.

A unique grasp of a tangled skein was recently exhibited by a judge of the Probate, Divorce and Admiralty Division of the High Court of Justice, when a woman who, it was shown, had misconducted herself, was nevertheless granted an absolute decree of divorce against her husband.[3] It appeared that the woman, who petitioned, had passed a very dreadful life, which began by her seduction by her father’s groom. The groom became her husband; she ultimately took divorce proceedings against the man, but lapsed herself before obtaining the final decree. The judge took a magnanimous view of the facts, sympathised with the petitioner in her unfortunate life, and granted her what she sought. The whole course was novel, but it left people with the impression that greater justice had been done in this way than would have been done had the judge refused the divorce. The case is not without interest as a precedent. It savours of benignity and commonsense, coupled with a sufficient disregard for inadequate conventional methods. The prospect of lifting a fallen woman, from a sordid atmosphere to a plane of respectability, no doubt chiefly actuated the judge in his decision. His summing up, indeed, made this perfectly clear.

The existence of the peasant is not, perhaps, intellectually interesting, as a rule, but his predicament, were he minded to take divorce proceedings, would contain some instructive matter. In the first place, his method of attacking such a question would be to petition _in formâ pauperis_. This is more easily said than done, for a tough and wide-awake solicitor must first be convinced that he is justified in giving credit to the would-be litigant. Giving such credit really means that he must be confident that it will be satisfied in due course by the authorities. He therefore considers the facts of the case with more than ordinary self-interest. The influence most likely to induce him to take up the case is the reasonable certainty of success. The anxious divorce candidate must perforce be capable of making his facts very clear and speaking, if he wishes to secure the services of the solicitor. When this feat has been accomplished, he is in a fair way to proceed _in formâ pauperis_.

A singular case of matrimonial difficulty, where the parties were of the lower orders, was recently brought out in the Norwich County Court. The facts arose in a claim, or rather in two claims, under the Workmen’s Compensation Act. It appeared, that a man named Mathew Charles Clarke was killed while working for the Norwich Corporation. Two compensation claims were at once put forward by two women, each woman setting herself up to be the man’s wife. According to the report, Mathew Charles Clarke, the defunct workman, married a woman named Elizabeth Shreeve in the year 1870. This important ceremony took place at Norwich. In 1873, the happy couple migrated to Newcastle, with the two children of the union. The following year they all returned to Norwich, in order that Clarke might go through his annual training in the Militia. The villain of the piece, a Militiaman called James Leech, then appeared on the scene. His initial _rôle_ was that of a friend of the husband. When the Clarkes returned to Newcastle, Leech, most appropriately named, went with them. His status was that of a lodger in the household. The personality of the man must, for his humble sphere, have been great indeed, for, in 1875, we find Mathew Charles Clarke ousted from his house and from his wife’s embraces; ousted, even, from Newcastle. Leech and Mrs. Clarke remained, while poor Clarke was only too glad to get back to Norwich alive. In 1886, eleven years after his departure from Newcastle, Clarke went through a form of marriage, before the Registrar at Norwich, with a woman named Elizabeth Cotton. This woman lived with him as his wife until his death. She did not know, it may be added, that he had ever had any previous matrimonial experience. From 1875 until 1888, Mrs. Clarke and her quondam lodger, Leech, remained at Newcastle. Then, they, too, returned to Norwich. No doubt they expected to make a “good thing” out of Clarke’s death, for no sooner had the man been killed than Mrs. Clarke put in her claim for compensation. Elizabeth Cotton, who had long believed herself to be the lawful spouse of Mathew Charles Clarke, then discovered to her dismay that her alliance was fictitious in law. She, however, persisted in her claim for compensation. No doubt a dramatic scene took place in the County Court, when the two fair relicts of Mathew Charles Clarke, deceased, shrieked their rights at the judge. We have heard of the Rights of Man, but they are as nothing alongside of the rights of women--more particularly of the class in question. His Honour Judge Mulligan, K.C., who heard the claims, was no doubt sorely tried before he was able to say, “I infer that Clarke was well aware of the relations between his wife and her lodger, and would, if he had been a man of means, have employed one of the esoteric counsel in the Divorce Court to obtain a dissolution of his marriage. But he had not the means to go to London, and there is no Divorce Court in Norfolk. The Divorce Act is, in fact, administered only in London, and there only for the relief of a few wealthy persons who suffer from the erotic misadventures of a few others of the same class--for the relief only of rich victims of the naughty rich. So far as workers in the country like Clarke are concerned, the Divorce Act might as well not have been passed. As there was no practical means of dissolving his marriage, the man committed the crime of bigamy.” His Honour concluded by saying, “The Workmen’s Compensation Act does not palliate bigamy; it does not subsidise adultery.” Judgment was given for the mayor and corporation, and both claims for compensation were dismissed. Sordid as this story may be, it seems to forcibly express the necessity for extending cheap divorce facilities to the County Courts. Certain days might be set aside for the hearing of divorce cases, without overtaxing the mentality or the endurance of the learned judges. It might even afford them some trifling reaction from the constant billow of petty money claims.

Public policy in this age certainly supports cheap divorce facilities. After all, there is no reason why a systematic reduction of law expenses should not be brought about in all the courts of the land. As matters stand, the rapacity of solicitors is more to blame than the high fees of well-known counsel. If a solicitor is “skilful in drawing a bill of costs,” his future is assured, as many a client knows to his or her misfortune. The degree of skill becomes apparent by the amount of the bill after it has passed the Taxing-master! The thousand and one details which can be colourably incorporated in a bill of costs, arising out of divorce proceedings, are often a revelation to the professional eye. Every man believes _his_ solicitor to be honest. Let the day of disillusionment be far off!

A matrimonial case of curious interest recently came before the courts. It was an almost unique instance of the length a woman will go, on the force of an impulse. The President of the Probate, Divorce and Admiralty Division, described the facts as “extraordinary.” So, in truth, they were. On February 4th, 1910, a married woman named Dean set out for Olympia, with her sister, Mrs. Smith. They were accompanied by a male acquaintance of Mrs. Smith. It was adduced by the evidence that the husband of Mrs. Smith objected to the “male acquaintance” referred to. Mr. Smith, a commercial traveller, discussed the matter with his wife on the following day. It has since been alleged that there was a scene, in the middle of which Smith threatened his wife with divorce proceedings and divers other ills. Mrs. Smith was naturally very much agitated and appealed to her sister, Mrs. Dean, for a solution of the difficulty. The latter proved herself to be a woman of ready resource, for she replied, “I will say I have misconducted myself with Henry!” (“Henry” was Mrs. Smith’s husband.) Mrs. Smith was very grateful, indeed, and asked her sister whether it would be all right. Mrs. Dean reassured her on this point, and the “plot” was complete. It was then agreed that Mrs. Smith should communicate the fact of his wife’s adultery to Mr. Dean. The upshot of it all was that Mrs. Smith telephoned Dean, without further delay. It was under these circumstances that at an interview, soon afterwards, Mrs. Dean confessed to her husband that she had in fact committed adultery with her brother-in-law, Henry Smith. She, however, refused to put her admission into writing. On February 7th, in the presence of other persons, her mother, sister, etc., Mrs. Dean told her husband that the whole incident was a concoction on her part, and that there was no truth whatever in the recent “confession.” Dean refused to believe her and took steps to petition for divorce. In answer to the judge, at the hearing, Mrs. Dean said that her sister had never believed the confession, and had never accused her of having misconducted herself with Smith. When the co-respondent, Smith, went into the witness-box, he said that he had hardly treated the question seriously. He had heard about the plot sometime in February, and he then and there told his wife and her sister that they must have been mad to have conceived such a thing. The petitioner, Dean, informed the court that he had never known anything about the plot until that day. In the result, the jury found that there had been no misconduct, and the petition was dismissed, with costs.

What is known as the “restitution of conjugal rights” might as a phase of matrimonial law be consigned to the scrap-heap.[4] A certain petition of this class attracted some interest three or four years ago, when a married woman, judicially separated, brought her husband into court as a respondent. Though this story has no legal point, it may perhaps be given here. In a few words, the petitioner, who, it was alleged, was addicted to drink, had gone to Switzerland. She was, as already stated, judicially separated from her husband, and, in consequence, a petition for the restitution of conjugal rights would have been entirely out of the question, unless, of course, the husband had committed some act to render the force of the separation void. The petitioner’s case was that her husband had followed her to Switzerland, and had there had intercourse with her. His story, on the other hand, was that he had gone to Switzerland to obtain the custody of a certain child of the marriage, owing to the mother’s inability to take proper care of it. He denied that intercourse had occurred between himself and his wife. The case was a difficult one to decide, for there appeared to be some foundation for the allegation concerning the wife’s habits. The judge, however, believed this lady’s version and made an order against the husband for the restitution of conjugal rights. The whole case centred round the one point. Did the husband have sexual intercourse with his wife on a certain date at a certain place in Switzerland? The issue was clear enough, but the facts leading up to it were complex in the extreme. The weaker vessel gained the benefit of the doubt. All such cases are more or less unsatisfactory. If there had been a clear divorce, instead of a separation, where these unfortunate people were concerned, the Swiss episode would have been unimportant. Several days of the court’s time would have been saved in arriving at a decision, which, after all, was of small value to either party.

“Among the Romans, divorce did not require the sentence of a judge, and no judicial proceedings were necessary. It was considered a private act, though some distinct notice or declaration of intention was usual. At one period it was the practice for one of the spouses to intimate the divorce to the other in an epistolary form, by means of a freedman, in presence of seven witnesses, all Roman citizens above the age of puberty; and this was no doubt intended to preserve clear evidence of a transaction which was attended with such important effects on the civil rights of the parties concerned.”[5]

This simple means of obtaining marital freedom contains much to recommend itself to the unhappy people who are barbarously tied together to-day, in spite of their mutual antagonism of temperament and desire. In France, the Civil Code authorises divorce on the following grounds: “(1st) Adultery by the wife, or by the husband if he kept a concubine in the common dwelling-house; (2nd) Outrageous conduct or ill-usage by either of the spouses; (3rd) Condemnation to an infamous punishment; and (4th) In a certain limited class of cases by mutual consent, but only upon the conditions and under the restrictions specified, which are of the most stringent character.”[5]

It is interesting to refer to the Scottish law on the same subject, particularly when it is stated by an eminent Scottish judge, Lord Mackenzie, in his work on Roman Law. “By the law of Scotland a divorce may be obtained by the husband or the wife on the ground of adultery, or of wilful desertion for four years together, without just cause, after adopting the forms of the Act 1573, c. 55, so far as these are still required.... In suing for a divorce in Scotland the wife has precisely the same rights as the husband. If she can prove adultery or wilful desertion for four years by the husband, that entitles her to take proceedings for a divorce, in the same manner as adultery or wilful desertion on her part entitles him to a similar remedy.... The action of divorce proceeds before the Court of Session, and the right to institute it is personal to the husband or the wife. As a preliminary, the pursuer is required to make oath that the suit is not collusive. In this and all consistorial actions the summons must be served upon the defender personally when he is not resident in Scotland; yet, upon evidence to the satisfaction of the court that the defender cannot be found, edictal citation will be held sufficient; but in every case where the citation is edictal the summons must be served on the children of the marriage, if any, and on one or more of the next-of-kin of the defender, exclusive of their children, when the children and next-of-kin are known and resident within the United Kingdom; and such children and next-of-kin, whether cited or so resident or not, may appear and state defences to the action.... When the husband sues for divorce on the ground of adultery, he may cite the alleged adulterer as a co-defender, and the court may order him to pay the whole or any part of the costs, or may dismiss him from the action, as may seem just.... In the case of adultery, divorce is barred by condonation or forgiveness, as well as by collusion or connivance. Recrimination cannot be pleaded as a defence to exclude the suit, but it may be stated in a counter-action, as the mutual guilt may affect the patrimonial interests of the parties.... The legal effect of divorce on the ground of wilful desertion under the Act 1573, c. 55, is, that the offending husband is bound to restore the tocher (_dos_), and to pay or implement to the wife all her provisions, legal or conventional; and the offending wife forfeits her terce, and all that would have come to her had the marriage been dissolved by the predecease of the husband. By analogy the same consequences have been extended to the case of divorce for adultery, with this exception, that it appears to have been decided, upon very questionable grounds, that the offending husband in the case of adultery is not bound to restore the tocher.... After divorce, both parties are at liberty to marry again; but the Act 1600, c. 20, annuls any marriage contracted between the adulterer and the person with whom he or she is declared by the sentence of divorce to have committed the offence.”

This extract, though somewhat lengthy, seems to give every essential point of the Scottish law of divorce in a clear, easily-understandable, form. With the exception of the law of 1600, which forbids the subsequent marriage of the defender and co-defender--a harsh and unnecessary condition--Scotland does not appear to be too ill-favoured in her machinery for dealing with divorce. Indeed, there are other branches of Scottish law, on which it is intended to touch in this work, which contain a better perspective of justice than similar branches of law in this country.

Bodies of law grow up by a gradual process, and this gradual process generally tends to blunt the faculties of criticism; the law as it is seems a part of nature, whereas it is often little else than a bad habit!

For persons with a certain taste for legislative phraseology, the existing Divorce Act, 1857, will be found interesting. It is the desire of the writer to suggest certain alterations, or amendments--or the repeal of the Act, with new legislation of a common sense kind to take its place. To summarise in a few words the purpose of this chapter, the requirements of the day seem to indicate the necessity for:--

(1) A Divorce Court, with a judge or judges exclusively occupied with matrimonial causes.

(1a) The transference of Probate and Admiralty work to the Chancery and King’s Bench Divisions respectively.

(2) The granting of divorce to either party where domiciliary separation has existed for one year.

(3) The granting of divorce to either party where both parties have misconducted themselves (in such cases the custody of any children to be shared by the parents--six months out of each year the right of custody to vest in the mother, and six months in the father).

(4) The abolition of the judicial separation; also, of the separation by deed.

(5) The abolition of the petition for the restitution of conjugal rights.

(6) One decree of divorce to be final and absolute at the time of granting--consequent abolition of the existing form, the “decree nisi” and the “decree absolute,” with the objectionable six months’ interval

(7) The system of granting financial provision, _i.e._, alimony, to an untainted wife who petitions, to stand on the present basis. Also, damages against a co-respondent to stand.

(8) The elimination from a petition of the allegation of “cruelty” which now has to be proved by a petitioning wife before she can obtain a divorce. Adultery without “cruelty” to form a foundation for a successful petition.

(9) The donation of powers to grant divorce to all County Court judges, for purposes of expediency in connection with the poor.

These seem the principal points associated with “what the public wants” in this age of a better appreciation of the “nature of the beast”--Man, or more correctly, Mankind.

Footnotes

[2] See Appendix A.

[3] Pretty _v._ Pretty.

[4] “In granting the application of a Paris doctor for restitution of conjugal rights, the judges have made an interesting new departure by fixing a penalty of £4 for every day’s delay in complying with the order of the Court. They consider this the most practical means of bringing the recalcitrant wife to reason.”--_Pall Mall Gazette._

[5] Lord Mackenzie in _Studies in Roman Law with Comparative Views of the Laws of France, England, and Scotland_.

Chapter II

Death And Burial[6]

The office of the coroner dates back for many centuries, but it has never grown to much importance, despite the blazing interest which sometimes attaches to it during the preliminaries leading up to a notorious murder trial. The coroner may be any one of a great variety of things from a barrister to a doctor, from a solicitor to a man who can just read and write. It is this variation in qualification which has perhaps helped to prompt the persons responsible for the introduction of the new Bill--The Coroners’ Law and Death Certification (Amendment) Bill.

Too little regard is paid to death by most people, beyond the matter of testamentary disposition, and even that is often neglected. Death deserves as much consideration as life itself, and to neglect its contemplation exhibits a certain want of foresight. It may be that from time immemorial it has savoured of supernatural association, but after all it is the most ordinary incident of nature to which we are subject. One has no hesitation in giving the laws relating thereto the advantage of publicity, for the simple reason that they should be no less interesting than intimate essays on the rules regulating divorce, or marriage, or any other peculiarly human question.

Some estimate of the purpose of the new Coroners’ Bill, will be found in the following _Memorandum_:

“This Bill, which does not apply to Scotland or Ireland, is intended to remove certain anomalies in the law relating to coroners and inquests, and to the certification of deaths, disclosed by reports of several committees during recent years.

“The Coroners’ Act, 1887, did little more than codify the principal features of the law and practice of coroners, which had become confused and complicated by numerous statutes dating from the reign of Edward I. In 1893 a Select Committee was appointed to ‘inquire into the sufficiency of the existing law as to the disposal of the dead, for securing an accurate record of the causes of death in all cases, and especially for detecting them where death may have been due to poison, violence, or criminal neglect.’ The report of that committee indicated the urgent necessity for reform. The Inter-Departmental Committee on Physical Deterioration which sat in 1903 also directed attention in their report (_vide_ Bill) to the dangers incidental to the defects in the law relative to the registration and certification of deaths and recommended the registration of still births.

“The law relating to coroners is not adapted to modern necessities; its administration is costly to local authorities without securing efficiency in results.

“In December, 1908, a Departmental Committee of the Home Office was appointed to inquire into the law relating to coroners and coroners’ inquests, and into the practice in coroners’ courts.

“The provisions of this Bill are intended to give effect to many of the recommendations of the Departmental Committee of 1908, and of the Death Certification Committee of 1893.

“The report of the Departmental Committee drew attention to anomalies existing in the appointment of coroners in certain ‘franchise districts’ in the qualifications required of coroners, the conditions of their appointment, the mode of their remuneration, the provision of deputies, the areas of jurisdiction, etc.

“The law does not at present contemplate inquiry by a coroner except in view of a subsequent formal inquest, nor can he order a _post mortem_ examination except in a case of inquest. The coroner’s officer, to whom important duties are confided, is an official unknown to the law. The viewing of the body by the jury is still compulsory, though no longer deemed necessary in all cases. Attention was also directed by the Committee of 1908 to the need for better provision in regard to skilled medical investigators and to the remuneration of medical witnesses.

“The Departmental Committee recall the findings of the Select Committee on Death Certification of 1893, which have not hitherto been the subject of legislation, as bearing directly on the functions of the coroner. Thus at present the law does not require a certificate of death to _certify as to the fact of death_,[7] or as to the identity of the deceased, but merely the cause of death. They further state that ‘it is no fault of the law if premature burials do not take place. _The present law of death certification offers every opportunity for premature burial and every facility for concealment of crime._’”[7]

With allusion to premature burial and concealment of crime, the _Memorandum_ attached to the new Bill comes to an end. The Bill itself settles down to deal with “Coroners.”

Section 1. “Every power to appoint a coroner shall cease upon the first occurrence of a vacancy in the office of coroner after the _commencement of this Act_.”

Then follow certain references as to the redistribution of coroners’ jurisdictions. The financial aspect of the office of coroner is not neglected.

Section 2. “There shall be paid to every coroner such salary as the authority by whom he is appointed and paid may decide, provided that after the lapse of five years from the date of appointment of the coroner, and of every successive period of five years, it shall be lawful for the authority to revise and thereby increase or diminish such salary, and if the coroner is dissatisfied with such revision the Secretary of State may determine the amount of such salary on the application of either the authority or the coroner.”

Another provision which exhibits a certain foresight, defines the question of age limit: “Every coroner shall cease to continue to hold the office of coroner on reaching the age of sixty-five years, provided that the Secretary of State may continue such coroner in office for a further period not exceeding five years on the application of either the authority by whom he was appointed or the coroner.”

The question of granting the retired coroner an annuity by way of superannuation allowance appears to be justly provided for; the authority of the Home Secretary is left to decide the amount, together with the detailed regulations relating to such payment. What is of greater public importance seems to be contained in the next provision, which deals with the qualifications of coroners.

Section 5. “No person shall be appointed a coroner unless he be a practising barrister of not less than five years’ standing, or a solicitor of not less than five years’ standing, or a registered medical practitioner who is also a barrister or a graduate in law of a University in the United Kingdom, provided that no member of the authority making the appointment, or any person who has been a member of such authority within a period of twelve months immediately before the making of the appointment, shall be eligible for appointment as a coroner by such authority.”

On the whole, there is little to criticise or attack in the qualifications set out, though it might not be too much to demand eight or ten years’ professional standing in the case of a solicitor, instead of five. Indeed, it seems scarcely equitable to place a solicitor on the same basis as a barrister or an especially highly qualified medical practitioner, unless such solicitor has taken a University degree, or has had to pass examinations of a more academic character than those which obtain at present.

Section 7. “Every coroner’s district shall be provided by the authority who appoints the coroner with suitable accommodation for holding inquests, and with a coroner’s officer or officers and other assistance as may be necessary for the proper carrying out of the duties of the office of coroner.”

This provision sounds very well in theory, but are not most populous centres already equipped with the necessary facilities for conducting an inquiry? If any such populous centre exists which is not so equipped, then the provision is most essential. But in outlying country districts, to centralise the place of inquiry would involve carting the dead body a great distance, to the probable discomfiture and inconvenience of the surviving relatives. In average cases, there is no special need to subject a dead body to more than ordinary scientific investigation, as near the place of death as possible, to fulfil the intentions of the law, and to have it tumbled across a county and back, with incidental delays is, one may safely say, somewhat unnecessary, if the natural feelings of surviving relatives are to be considered. An ordinary country house is usually sufficiently well adapted for the purposes of holding a _post mortem_ examination and a coroner’s inquiry. The customary system of using a local inn is not altogether bad, either, when it is remembered what a small number of inquests are anything like necessary in country districts.

Section 9. “Notwithstanding anything in subsection (1) of section three of the Coroners’ Act, 1887, a coroner after due inquiry into any case referred to him may decide not to hold an inquest if he is satisfied that the deceased died a natural death.... For the purposes of an inquiry under this section, the coroner may order a _post mortem_ examination, and the cost of such examination, being such sum as the Secretary of State may by regulation prescribe, shall be defrayed as if the examination were made in connexion with an inquest.”

In section 10, there is provision for the appointment of standing “medical investigators or pathologists” in each coroner’s district to assist the coroner in his inquiries and inquests and to make _post mortem_ examinations. The next section refers to the payment of ordinary medical witnesses, as opposed to the coroner’s “medical investigators or pathologists.” Section 12 of the Bill makes some sentimental provision in connection with the coroner’s jury and the question of “viewing the body.” It is of no great importance or interest one way or the other. Section 13, on the contrary, is of definite value from a legal standpoint. “Every coroner,” it settles, “shall cause a record of every inquiry and inquest to be kept, and shall transmit such record to the clerk of the [county] council or borough council, as the case may be, and it shall become the property of such county council or borough council, as the case may be, and such record shall be so made and transmitted as the Secretary of State may by regulation prescribe.”

In section 14, it is provided that “The Secretary of State may frame rules and orders for regulating the procedure or practice of coroners’ inquiries and coroners’ courts, and forms of proceedings therein, the fees to be charged for copies of depositions, records, or any document in the custody of the coroner or the local authority, and any other matter not regulated by statute on which it may, in the opinion of the Secretary of State, be desirable to prescribe the practice of coroners, and may from time to time amend such rules, orders, forms and fees.”

It is to be hoped that this section will be the means of establishing the rules of procedure on an exact basis. Also, there is no reason why the rules relating to evidence should not be applied with as much strictness in a coroner’s court as in a Metropolitan Police court. It is true that in numerous cases a coroner’s inquest savours more of a _quasi_-scientific investigation than a legal inquiry, but it should be borne in mind that it is primarily concerned in upholding the law by checking or discovering crime. Candidly, a better appreciation of this aspect of his functions would improve a coroner’s status among legal practitioners. Whether a man died from cerebral hemorrhage or syncope is really of little importance, provided he did not die by some unnatural means. The everlasting verdict, “Death from Natural Causes,” is far too frequent. Admittedly, where a medical practitioner has refused to certify the cause of death, the coroner has in the past been bound to order an inquiry, but in numberless instances the result of a great deal of trouble has merely been a verdict of natural death. Of course, this is not to be construed to apply to cases originating in suspicion. Where there is suspicion, there should be an inquest. Where there is no suspicion as a _raison d’être_ for an inquest, there should be no inquest.[8] This would do away with hundreds of useless and even expensive inquiries. The “medical investigators or pathologists” of the new Bill should often be able to satisfy themselves, by the appearance of the body and the circumstances attendant upon the death, without having recourse to a _post mortem_ examination.

It might be fairer to the pathologists were they to receive a fixed remuneration per annum, irrespective of the number of bodies subjected to scrutiny or to internal examination. The remuneration could be based on yearly averages, when the perfectly natural incentive for an extra two guineas would be absent in deciding them in favour of a _post mortem_ or against the necessity for it. It is not suggested that a reputable pathologist would be much influenced by a trifling fee, but where he is to receive payment for doing a thing, and nothing for not doing it, he perforce does it. Then, too, where a person has the power to decide whether or not the carrying out of a _post mortem_ is necessary, there is a tendency for him to give more attention to all the various circumstances of the death than he might otherwise feel himself obliged to do. A highly qualified man, with the power of independent judgment, does not deliberately set himself a task unless he believes its performance to be essential. By giving some such power to the “medical investigators or pathologists,” a great deal of superfluous work would be saved. The question of reducing every coroner to a fixed salary--_i.e._, a salary not dependent on the number of dead bodies on which inquests are held--would be a further advantage both to the coroners and to the community. The system of so much per head per corpse is obsolete; if it is not exactly obsolete, it ought to be so.

The second part of the Coroners’ Law and Death Certification (Amendment) Bill is concerned with questions of death certification and burial. Section 16 of the Bill, which is the first in Part II., sets out that “No death shall be registered under the Registration Acts without the delivery to the registrar of a certificate of death duly signed by a registered medical practitioner, or by a coroner, after holding an inquiry or inquest.” The next section goes on to say that, “Before giving a certificate of death, a registered medical practitioner shall personally inspect the body and identify it as the body of the person named in the certificate whom he has attended during his last illness, and shall _certify to the fact of death as well as to its cause_.” (The italics do not appear in the Bill.) Sections 18 and 19 are uninteresting, merely containing, as they do, particulars of the form of death certificates and the method of filing the same.

Section 20. (1) “When the registered medical practitioner who attended a person during his last illness is unable to give a certificate of death, he shall forthwith notify to the coroner the fact of such death with the reasons for his inability to give such certificate.” (2) “When no registered medical practitioner has attended the deceased person during his last illness, the relatives, friends, or other persons having cognizance of the death, or of any doubtful or suspicious circumstances attending the death, shall themselves report full particulars thereof to the coroner.”

Section 23. “Every person who shall bury or otherwise dispose of any dead body shall certify, by endorsement of the burial order (which endorsement shall be in the form set forth in the Second Schedule to this Act), the name of the place, the date, and the mode of burial, or other mode of disposal of the dead body, and shall send such order to the registrar of deaths in whose district the death was registered within five days after such burial or other disposal of the dead body. Such certificate shall, together with the certificate of death, or finding of the coroner after inquiry, or verdict after inquest, as the case may be, be entered in a book kept for the purpose, to be called the ‘register of deaths and burials.’” Then follow penalties for non-compliance with the regulations specified.

Section 24. “No person responsible for the burial or other disposition of any dead body shall retain the same, or delay the burial or other disposition of the same for any longer period than eight days after death, except with the previous written consent of a justice of the peace. Before giving this consent such justice shall be satisfied that such retention or delay is reasonable, and the consent shall state the period and grounds of such retention or delay. Any person who fails to comply with the provisions of this section shall, on summary conviction, be liable to a fine not exceeding _five pounds_ for every day during which he fails to comply as aforesaid.”

Part III. contains one important provision. “Any dead child which has issued forth from its mother after the expiration of the twenty-eighth week of pregnancy, whether alive or dead, shall be the dead body of a person within the meaning of the Coroners’ Act, 1887, and this Act, and a person within the meaning of the Births and Deaths Registration Act, 1874.”

By the foregoing extracts from the new Bill, it will be seen that a greater attention is to be paid to establishing _the fact of death_, something which hitherto has been left to be implied from the nature of the certificate. The intention of the provision is, of course, excellent. It may even help to abate the nervousness of persons who go in dread of burial alive. But its practical value will be dependent on the precautions taken by the individual medical practitioner in his examination of the corpse. The routine of examining dead bodies becomes as commonplace as any other routine, and it might not be a bad policy to include a provision for a definite test by which the medical practitioner could finally _prove the fact of death_.

Cases of premature coffining may be extremely numerous or extremely rare. It is a purely speculative question. There is, however, little doubt that where a supposed dead body is left to the tender mercies of funeral scavengers, few of these men would scruple to coffin the same, though still animate, if the chance of discovery were remote. And the chance of discovery would be remote--indeed, it might be quite absent in nine out of ten such cases. Obviously, the most perfect way to prevent premature coffining would be for the relatives or friends of the deceased to retain possession of the body until definite indications of decomposition or putrefaction were present. In many cases, the eight days allowed under ordinary circumstances by the new Bill would enable interested persons to secure evidence of this character.

An advantage which England has over France lies in the fact that in this country hasty burial has never been enforced. The climate here certainly lends itself to a comparatively tardy process of decomposition. In tropical countries, when a man dies his body is buried or otherwise disposed of a few hours after death. In France, unless special permission is obtained from the local authorities (which involves having the body embalmed), it is usual to carry out burial within forty-eight hours from the time of death. This applies to the North of France, Normandy and Brittany, where hasty burial is in no sense climatically necessary. But there are many other things associated with French regulations regarding the dead which would not find much support in this country. The grave lease, for instance, which merely secures _temporary burial_, is one. A person dies and a grave is leased for five years. At the end of the five years, the body may be exhumed, and, for want of a better purpose, it is removed to a factory where the residue of the decomposed flesh is boiled off, or steamed off, and a skeleton is the result. The skeleton is afterwards sold to the anatomical specimen dealer. As a regular traffic, the whole scheme is odious and would not appeal to the legislators of this country. Another French institution for the disposal of the dead is the “funeral pomp monopoly.” A _concessionnaire_ obtains the right to bury all the dead in a certain district, with the result that there is no competition and no choice of undertakers or methods left to the person who is responsible for the burial of a friend or relative. In Havre, in Rouen, in Paris, these monopolies exist. One finds them in the smaller towns, too, where the old peasant in the street feels distinctly uncomfortable, on beholding the very men who will certainly pack him in his coffin the moment he dies!

The employment of an undertaker is in no sense obligatory in England, and an amateur funeral, needless to say, is just as legal as a funeral carried out by Peter Robinson or Maple and Co.![9] There is also no reason why the persons who die in a certain district should be buried or cremated in that district. The law does not interfere with sentimental preference. In England, the voluntary choice of burial place,--means, method, etc.,--is legally sanctioned. To a material mind, however, it is absolutely incredible how the people themselves at this advanced epoch continue to employ the ludicrous top-hatted, woebegone scarecrows, whose only function is to carry a piece of furniture to a wagon, also equally grotesque in its appearance, and a little later on to discharge the burden at a graveyard, a railway station or a crematorium! The day of undertakers’ “mourners,” desperate-looking hearse-drivers, and other _bizarre_ mockeries connected with funerals, should be ended by the force of common sense. The system continues through habit, through a certain repulsion which many people have for giving practical thought to death and its circumstances.[10]

Footnotes

[6] See Appendix B.

[7] Mr. Chester’s italics.

[8] “The Isle of Wight Coroner to-day decided that an inquest was unnecessary on Sir Alfred Lyall, who died suddenly at Lord Tennyson’s yesterday. Sir Alfred’s medical attendant has certified that he was suffering from angina pectoris. The funeral will take place at Harbledown, near Canterbury.” From the foregoing paragraph in _The Pall Mall Gazette_, April 11, 1911, it will be seen that the discretion allowed the coroner has been well employed. Though Sir Alfred Lyall fell down dead in his room, there was obviously no cause for an inquest.

[9] “The French have the reputation of being a witty people, but although they have shaken off belief in revelation, they are to the last degree credulous in other things. No invention, says _The British Medical Journal_, seems to be too silly for a French paper to palm off on its readers when it deals with English matters. Not long ago it was gravely announced in a French medical journal that an English company had been formed to work a patent for the installation of cremation ovens in private houses.... Our contemporary, which professes to quote from a circular issued by the new company, states that the apparatus is therein described as ‘a gas furnace, low, but long and wide, covered with a steel case, into which the coffin is introduced.’ The corpse, it is said, is burnt in a few seconds. The oven must be heated an hour beforehand. For those who do not happen to possess this convenient arrangement among their household furniture, the company offers it on hire. All one has to do is to telephone to the right address and the company will forthwith send the apparatus with skilled operatives to work it. The price of the whole apparatus is given at £90, and the total cost of the operation as £2. But the company hopes that if its affairs prosper it will be able to reduce the price. Here, says our contemporary, is an idea which could only spring from the brain of an Anglo-Saxon.... To this we reply that the idea, wherever it sprang from, could only have been published in a French journal. This suggested addition to the comforts of the English home opens up wide possibilities. We are recognised as the pioneers of sanitation. Are not our water-closets diffused throughout the civilised globe? The bathroom has followed, though to a much more limited extent. A home crematory would certainly have several advantages, alike from the sentimental and the practical points of view. The crematory _à domicile_ would sweep away once and for all the mourning coaches, undertakers’ men, and all the trappings and ceremonies that make death hideous to all but those ghouls who find an unholy joy in the last rites paid to a defunct fellow creature.... With the home crematory available the only funeral-baked meat would be the corpse of the deceased. Now that we are told to lead the simple life, here is a way of getting rid once and for all of one of the most artificial ceremonies of civilised life. A crematory in the home would also supply to unscrupulous persons who wished to get rid of inconvenient relatives an easy way of disposing of the compromising remains. Lest the lively but simple-minded Gaul should misunderstand us, we hasten to add the warning which Artemus Ward found necessary for his readers, that this is a ‘goak.’”--_Pall Mall Gazette_, April 15, 1911.

[10] It has frequently occurred to the writer, who has made a practical study of such subjects, that the conduct and methods of persons who traffic in the disposal of dead bodies should be brought into the closer cognizance of the law. A regular system of police inspection is required. The acts and omissions of the irresponsible scavengers who thrive on burying the dead are often of such a character that the law itself is infringed. A popular weekly paper contains the following passage in its current issue:--“In one of the poorer districts of Manchester the police have just found on the premises of a female undertaker the bodies of nine children--all very young, seventeen days being the oldest--waiting until the parents could secure the necessary burial fees, to be buried. The remains were discovered in an outhouse; and, impossible as it may seem, one body had been there for two weeks.... On making inquiries, I find that there is nothing at all unusual in this procedure. The poorer people are very sensitive where their dead are concerned, and have a great aversion to what is termed ‘a pauper’s grave.’ It is in times of trouble or death that the real good-heartedness of the working-class shows itself. Directly the neighbours learn that the house of someone in their midst has been visited by death, a subscription is started. However, as they are in receipt of only a meagre wage themselves, a week or so often has to pass ere sufficient has been raised to satisfy the undertaker, and apparently his premises are used as a sort of pawnshop for dead bodies.... When a child has had a separate existence, the doctor gives a certificate of death, and a _post mortem_ is not necessary. Consequently, it is very doubtful if anything further will be heard about the matter.”

The poor make, relatively, the easiest victims in connection with funeral extortions. One hears of defunct costermongers being carted to the grave in four-horsed hearses, etc.! A good example of funeral extravagance is to be found in the subjoined paragraph:--“_Miner’s Funeral Costs £40._--It was shown at Pontefract County Court, on Tuesday, that the mother of a miner, just deceased, had spent £40 on the funeral. This sum included £5 10s. for tea to 110 persons who attended. There was also £10 for dresses, and the mother had borrowed £16 to make other payments.”

It is interesting to note that there is no right of property in a corpse. It is usual, however, for the executors of the deceased to have possession of the body and to control the means and method of disposal.

Chapter III

Wills

The will or testament of a man is one of the most important instruments of the law, affecting as it sometimes does the disposition of immense wealth, great estates, or other possessions. It is one of the simplest things in the world to draw correctly, to execute correctly, and to make binding on the successors of the testator. On the other hand, there is nothing in the whole law more capable of signally failing through some trifling omission.

People have a tendency to go to a solicitor for the purpose of having a will drafted, but, while this is generally a good precautionary measure, if the solicitor be a reputable member of his profession, it is not altogether necessary. It is of no legal account whether a testator writes out a holograph or gets someone else to draw up the terms of a will for him. A typewritten document is equally as good as either. The main points connected with the subject can be set out in a few words. A testator must sign the will at the foot or end thereof, or it may be signed by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses, present at the same time; and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary. Every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear in the will. No will made by any person under the age of twenty-one years shall be valid. As a general rule, every will made by a man or woman shall be revoked by his or her marriage. All gifts or legacies by will to an attesting witness, or to the husband or wife of such witness, or to any person claiming under either of them, shall be void; but such witness shall be admissible to prove the execution of the will. On the face of it, these rules are easily grasped and easily conformed with, though the slightest divergence from them, or an oversight, may prove fatal to the validity of the will. For instance, it is of vital importance for the testator to sign his will in the presence of the two witnesses, and for the two witnesses to sign in each other’s presence[11] and in the testator’s presence.

This particular formality is perhaps the most important of all, as matters stand. An illustration will presently be given to bring this fact out more clearly. Some effort will also be made to exhibit the possibilities of injustice in connection with the execution of a will. These “possibilities” have become “certainties” too often in the past. Anomalies of the law can be found in hundreds of will cases, but the writer is now chiefly concerned with exposing flagrant examples of injustice arising out of a too strict regard for formality as opposed to _intention_. Intention, too, is of great legal importance in many directions, notably in crime, and, indeed, in the construction of wills as well, but it is of little account if it is not supported by the usual formalities of execution. Such matters come within the jurisdiction of the Probate Court, the Divorce Court transformed for the occasion. (The chameleonic complexion of the Probate, Divorce and Admiralty Division of the High Court of Justice, has already been touched upon.)

The primary object at present is to show, quite simply, the working of the Statute of Wills, which came into operation January 1, 1838.

Towards the end of the month of March, not many years ago, _A_, the son of _B_, was asked by _B_, his mother, to instruct a solicitor to draft a will, leaving him, the son, all the real and personal property of which she, the mother, died possessed, or which might fall in to the credit of her estate. She told _A_--her only child (the offspring of her first marriage)--that she had already provided for her second husband, _C_, during the years of her married life. The son duly carried out his mother’s request, though he had little suspicion that her death was at hand. Nor had she, in spite of the fact that she was supposed to be suffering from influenza, and had a nurse in attendance at the time. In due course, the draft will was left at the house by the solicitor. _A_ gave the matter no more attention, and for several days received favourable reports of his mother’s illness, both from her medical attendant, and from the trained nurse. On April 1st, an ominous date, he called at _B’s_ house but could not see her. The nurse, however, informed him that it was likely to be a long though not a dangerous illness. This was at five o’clock in the afternoon. At or about three o’clock the next morning, _B’s_ manservant arrived at _A’s_ chambers with a summons for him to go to his mother at once, as she was _in extremis_. _A_ hastened to dress, and, after a delay in finding a cab--for the servant had come on foot through _C’s_ intervention, _though the distance was four miles_--he hurried to his mother’s bedside. On arriving there, he found two nurses and a doctor present. _A_ asked whether the will had been executed, and his mother, who overheard the question, intimated that it was in a chest of drawers. _B_ was then given the will; she struggled to a sitting posture; the doctor handed her his fountain pen, but it was found to be dry. _A_ then went downstairs to obtain some ink. On returning, he discovered _C_, who had entered the room during his absence, standing over _A_, with what was afterwards described in the Coroner’s Court as a very menacing expression. _B_ held the pen and the draft will. In the presence of the doctor and the two nurses, she made a frantic effort to execute the document, which, had the pen been moist, would have borne markings, but her last spark of vitality gave out before she could be passed the ink. She fell back, whispering according to the evidence of the nurse standing nearer to her, “Thank God it’s done!” She was dead.

Here we have a testatrix at the point of death, still conscious and of perfect understanding, making a tragic effort to sign a will, in the presence of three reputable and disinterested witnesses. _A_ and _C_ can be left out of the question: they were interested parties; one under the will, and the other against it. In the result, the efforts of _B_, in her desire to secure her son in his natural rights, were quite futile. The dramatic scene in the chamber of the dying might just as well not have been enacted. According to English law, the will was not worth the paper it was written on; in fact, it was no will at all, as the pen in _B’s_ hand was dry. A peculiar injustice of the law, sorely felt in the case illustrated (where almost the whole estate consisted of personal property, _i.e._, stocks and bonds), lies in the fact that a husband, be he first, second or third, takes his intestate wife’s personalty absolutely, quite without regard to children of the marriage or of a previous marriage. A married woman may leave a very large or a very small estate in personal property, but if she dies intestate it goes to her surviving husband. It was thought a great thing when a married woman was first allowed to make a will as if she were still a _feme sole_. It would be, if not a greater thing, at least a protective measure where there are children, if the personalty of an intestate wife did not go absolutely and unconditionally to her husband.

The facts relating to _A_, _B_, and _C_, can be supplemented by a further illustration in connection with the law of wills.

It is in the nature of a sequel, for _A_ and _C_ are parties to it, and probate of the will of _B_ is the question at issue. Two or three years before her death, _B_ confided an envelope endorsed in her own handwriting to her son _A_. This incident took place at a fashionable French watering-place, just prior to the departure of _B_ (_A_ was remaining on). The writing on the envelope, which was sealed, announced that it contained “The last Will and Testament of _B_.” _A_ threw the envelope, carelessly, into a trunk with a mixed assortment of other papers. The trunk ultimately found its way to a country place of which _A_ was tenant. It was then and there forgotten, until the death of _B_ recalled the question of the endorsed envelope. An anxious investigation ultimately brought it to light, when it was found to contain a holograph will in the un-legal phraseology of the deceased lady. It was signed and witnessed approximately in due form. The signature of one of the witnesses was, however, that of the wife of _C’s_ brother; the other was that of a servant in her employ. This servant, who had subsequently married and disappeared, was traced, and she forthwith made an affidavit that _B_ had signed the will in her presence, and in that of the other witness; furthermore, that she, the servant-witness, and her mistress, had both attached their signatures in each other’s presence and in that of the testatrix. This was clearly perfectly true. Steps were then taken to prove the will, but owing to certain fictions on the part of the other side--statements that there was still another will, etc.--it became necessary to prove the will _in solemn form_. With the exception of an omission to appoint an executor, the will was complete and definite in its wording. _A_ was left everything. Unfortunately, twenty shares of stock, worth several thousand pounds, were mentioned as having been given on a certain date to _C_. Mention of this gift should not have been referred to in the will, which was about six years old. It was clearly the confirmation of a gift, so that it could be shown that _C_ had profited from time to time to a considerable extent during his wife’s lifetime. Meanwhile, during the six years which had elapsed between the making of the will and the death of _B_, _B_ had exchanged with _C_ the stock referred to in the will for other property of equal or greater value. When the case got to the Probate Court, _C_, after taking action to obstruct the free passage of the will by entering a _caveat_, agreed to withdraw opposition if he were forthwith handed half the stock in dispute. _A_, forced into a financial corner by an intimation that the wife (one of the will witnesses) of _C’s_ brother would come forward and swear that she and her servant were not both actually present together at the time of the signing of the testatrix, was compelled to transfer the stock to _C_. _A_ was granted letters of administration _cum testamento annexo_ (“administration with the will annexed,” which is the equivalent of probate where no executor is appointed by the will). In this way the matter ended. Had not the difficulty arisen of combating an attack on the point of the combined presence of the witnesses and the testatrix at the moment of signature, _A_ would no doubt have been left in tranquil possession of what was after all his rightful property. This apparently trifling detail compelling the presence of all three parties at the time of signature is of enormous importance. The greatest issue may hang upon it. The quality of witnesses is also not to be forgotten. No one who it is intended shall profit under a will should be used, for, though good as a witness, he or she is bad as a beneficiary. Then, again, a person with hostile motives can always quite easily go into court and swear that he or she was not actually in the room with the testator when the testator and the other witness attached their signatures. This was the suggested line in the case stated.

A probate action of some passing interest, owing to the notorious criminal reputation of the testator, recently came before the Probate Court, Sir Samuel Evans, the President of the Probate, Divorce and Admiralty Division, sitting. The will of Crippen, the murderer, was in dispute. It appeared that shortly before suffering the death penalty, Crippen made a will, in which he left all of his property to the woman Le Neve, or Neave. Her counsel contended that, until the applicant representing the defunct Mrs. Crippen’s next-of-kin had conclusively proved by admissible evidence the fact of the wilful murder of the wife by the husband they could not oust the legal personal representative from obtaining probate. Mrs. Crippen’s sister was the applicant, and the application was grounded on the contention that Crippen was not entitled to any benefit arising out of his own felonious act. (It seems that the bulk of the property left by Crippen was personal property which had come to him from his wife at her death--incidentally, after he had murdered her.) Le Neve’s counsel argued that Crippen, as he had suffered the extreme penalty of the law, was no longer a felon.

“The judge said that the court had, in special circumstances, discretion to pass over a legatee. Crippen had been convicted of the murder of his wife, the sentence of death was carried out, and there were special circumstances in the case. Therefore, he (the judge) would pass over the legatee of Dr. Crippen (Miss Le Neve), and grant letters of administration to the solicitor of the sister of Mrs. Crippen (Mrs. Theresa Hunn). Here the representative of a convicted felon claimed to be entitled to the estate--her only claim being one resulting from a felonious act. This was exactly as if Crippen himself had made the claim. It was clear that the law was that no person could obtain or enforce any rights resulting from his own crime; neither could his representative. The human mind revolted at the very idea that any other doctrine could be possible in the English system of jurisprudence.”

The judgment is interesting. It would in truth seem somewhat anomalous for a man to be able to murder his wife, succeed to her property, be convicted of the murder, and then leave such property to his ex-mistress.

There has not been a great deal to bring out in this chapter, chiefly because the points which have forced themselves upon the mind of the writer are in reality few in number, though important in their results. In drawing a will, it may be remembered, it is necessary to revoke all previous wills, codicils, etc. It is essential that the two witnesses and the testator should sign in each other’s presence.[12] It is also wise to bear in mind that marriage revokes a will and that the personal property (leaseholds, jewels, stocks, bonds, etc.) of an intestate wife goes to her husband absolutely. The drafting of a will is one of those things which could generally better be left to a reputable solicitor, though a testator may, if he avoids ambiguous directions, do the work for himself. The advantage in personally drawing a will lies in the certainty of secrecy, something which is not always to be found in a solicitor’s office. The witnesses should know that the document is a will, and they should be carefully chosen for their purpose. Where considerable property is at stake, it is frequently a great injustice to let it pass under the rules which apply to an intestacy. The anomalies of the law in this direction are more patent, perhaps, than they are in connection with wills.

Footnotes

[11] It seems that it is not always absolutely necessary for the witnesses to sign in each other’s presence.

[12] If not always essential, it is desirable.

Chapter IV

Libel And Slander

Little excuse is needed to touch on the law of libel and slander, owing to the constant flow of diverting cases brought in connection with this branch of legal activity. The King _v._ Mylius, arising out of a personal attack on King George; Howard de Walden _v._ Lewis,[13] an extraordinary instance of libel; De Forest _v._ Milner and De Forest _v._ Lady Gerard (two actions for slander) were among the notorious batch to be heard in the Royal Courts of Justice during Hilary Term, 1911.

There are many interesting points associated with libel and slander. Even the purely technical aspect of the subjects is often entertaining. Everyday life is full of slanders, perfect slanders too, many of them, but they are frequently, if not generally, of a non-actionable character, unless, of course, “special damage” protrudes itself into the situation in point.

According to Mr. Hugh Fraser, an authority on the subject,[14] or subjects, libel and slander are definable in this way: “A defamatory statement is a statement concerning any person which exposes him to hatred, ridicule, or contempt, or which causes him to be shunned, or avoided, or which has a tendency to injure him in his office, profession or trade. Such a statement, if in writing, printing, or other permanent form, is a libel; if in spoken words or significant gestures, a slander.”

“A statue, caricature, effigy, chalk marks on a wall, ‘signs or pictures, as by fixing up a gallows against a man’s door, or by painting him in a shameful or ignominious manner,’ may constitute a libel.”

If a plaintiff alleges “that he is the person referred to as the villain in a book or story which purports to be a work of fiction, he must prove (_a_) that the author meant to refer to him, and (_b_) that the work was so written that those knowing the plaintiff would reasonably infer that he was intended.”

To say of a barrister that he knows no law is actionable _per se_.[15] To impute incapacity to a journalist is also, it would seem, actionable _per se_. “In accordance with the common law principle that husband and wife are one person, ‘the uttering of a libel by a husband to his wife is no publication.’ ‘For many purposes they are,’ however, ‘essentially distinct and different persons, and, among others, for the purpose of having the honour and feelings of the husband assailed and injured by acts or communications made to the wife.’ Thus it has been held that sending a defamatory letter to a wife about her husband is sufficient publication.”

No action for slander will lie, without proof of special damage, unless the words of the slander (1) charge the person slandered with a criminal offence, (2) or where they impute to him a venereal disease, (3) or where they are imputations against a man in his office, profession or trade, (4) or where they attribute unchastity or adultery to a woman. In all other cases of slander the plaintiff must prove a definite temporal loss. The loss may be the loss of a client or customer, or the loss or refusal of some appointment or employment. The loss of a gift, whether pecuniary or otherwise, may be actionable, or of gratuitous hospitality, “for a dinner at a friend’s expense is a thing of temporal value.”

“Where the words are not _primâ facie_ defamatory, and where the plaintiff therefore intends to maintain that the words were defamatory by reason of their being understood in a special sense, he must be careful to insert in his statement of claim an averment specifying the defamatory meaning of the words complained of, and showing how they come to have that meaning, and how they relate to the plaintiff. Such an averment is called an _innuendo_.”

“It is no defence that the defendant uttered the words complained of in jest, ‘for jests of this kind are not to be endured, and the injury to the reputation of the party grieved is no way lessened by the merriment of him who makes so light of it.’”

“Slander, as such, is never a crime, though the words complained of may come within the criminal law as being blasphemous, seditious, or obscene, or as being a solicitation to commit a crime, or a contempt of court.”

“For words to be seditious they must be published with intent ‘to bring into hatred or contempt or to excite disaffection against the person of his Majesty, his heirs or successors, or the government and constitution of the United Kingdom as by law established, or either House of Parliament, or the administration of justice, or to excite his Majesty’s subjects to attempt, otherwise than by lawful means, the alteration of any matter in Church or State by law established, or to raise discontent or disaffection amongst his Majesty’s subjects, or to promote feelings of ill-will and hostility between different classes of such subjects.’”

The late Sir James Fitz-James Stephen has some interesting conclusions to draw as to what constitutes obscene matter in print. “A person,” he states, “is justified in publishing obscene books, papers, writings, prints, pictures, drawings, or other representations, if their publication is for the public good, as being necessary or advantageous to religion or morality, to the administration of justice, the pursuit of science, literature or art, or other objects of general interest; but the justification ceases if the publication is made in such a manner, to such an extent, or under such circumstances, as to excel what the public good requires in regard to the particular matter published.”

In a criminal prosecution for libel, “it is not necessary, as in the case of a civil action, that there should be publication in the sense of a communication by the defendant of the words complained of to some third party--it is sufficient if the words complained of be communicated by the defendant to the prosecutor himself, provided that their natural tendency is to provoke the prosecutor and excite him to commit a breach of the peace.”

It is interesting to note that in printed libels, _i.e._, in newspapers, books, etc., there is “a _primâ facie_ case of publication against the defendant where the manuscript from which the libel was printed is shown to be in his handwriting, there being no necessity to prove that he expressly ordered or authorized the printing.”

The defendant was “held liable where the plaintiff told some friends an absurd story about himself, and the defendant published it in his newspaper, simply for the purpose of amusing his readers, and believing that the plaintiff would not object.”

“The proprietors of a newspaper sued jointly with his negligent editor and the author of the libel cannot obtain compensation from either of them in respect of the damages which he has been obliged to pay to the plaintiff; nor will the fact that there has been an express promise to indemnify him if he will publish the libel in any may improve his position, for such a promise is void, the consideration for it being illegal. A printer cannot maintain an action for his charges for printing a libel; and if he agrees to print a book for a certain price, and finds in the course of his work that the book contains libellous matter, he may refuse to proceed, and can sue for that part of the work which is not libellous in an action for work and labour performed, and materials provided.”

“Where the libel has appeared in a newspaper, difficulty is often met with in attempting to ascertain the author of the libel, for an editor will not, as a rule, give this information, nor is he bound to do so. ‘When a man went to an editor to ask for the name of an anonymous correspondent, no blame attached to the editor for refusing to give the name. Indeed, an editor would be almost mad to do so. I should blame no editor for so refusing.’”--Baron Martin, cited in Fraser’s _Libel and Slander_.

The majority of the foregoing paragraphs have been taken from Mr. Fraser’s work, and, though they are submitted in a somewhat fragmentary state, their interest is of a sufficiently general character, perhaps, to warrant their inclusion here.

One of the most outrageous libels in recent years, was brought into court during the Hilary sittings, 1911, when, before the Lord Chief Justice and a special jury, Edward Frederick Mylius was criminally indicted for libelling his Majesty the King. The actual printing of the libel was carried out abroad, in the comparative safety offered by the French capital. Edward Hilton James was the person chiefly responsible for the offence. _Liberator_, a name one associates with Jabez Balfour, the assassination of a Russian Emperor and various other unsavoury events, was the title chosen for the organ in which the libel appeared. The _Liberator_ libel on the King was wholly unjustified from every conceivable standpoint. In the first place, had his Majesty chosen to go through forty ceremonies of the kind so falsely alleged, no one of them would have been legal, not even the first. The Royal Marriages Act, Geo. III.,[16] makes it illegal for any member of the Sovereign’s family to contract a binding marriage without first obtaining the consent of the Sovereign, or, failing that, without giving twelve months’ notice to the Privy Council. Marriage is a purely legal tie, and if it does not conform with the requirements of the law it must perforce fail. That is to say, there is no marriage where the law forbids it. Obviously, had his Majesty chosen to go through any ceremony of marriage without the sanction of the late Queen Victoria, or, without giving twelve months’ notice to the Privy Council, such ceremony would have been just as void as if it had never taken place. This is merely the way the law views the contingency. In actuality, the King never went through any form of marriage at all and the libel was a cruel and a wicked one.

To be a popular or celebrated figure at the present day is to be the target for every form of foul abuse, criminal concoctions and cruel lies. Whether a person’s life is blameless or blameworthy, he only has to reach a certain degree of public attention to be douched with the vile outpourings of a cesspool, or blinded by the volcanic lava of jealousy and spite. The individual who yearns for fame had better first well calculate his power to endure its concomitants! To the monarch, born to it, there is no choice. He must go ahead as best he can, sickened with humanity, with his own troublous lot, almost envious of the stagnant peace of obscurity, with its mediocre associations and perpetual monotony.

The hare-brained pseudo-revolutionary responsible for the gross writings in the Mylius case had the audacity to quote extracts from the American Declaration of Independence,[17] and other historic documents, to give the colour of respectability to his sewage rag. The present writer descends from officers who took part in the American War of Secession, the American War of 1812, and the American Civil War or the War of the Rebellion, but he can find no common ground between himself and the skulking anarchist who incited attacks on a harmless and worthy monarch, to wit, King George the Fifth.

Mylius, the criminal indicted for the offence, affirmed the truth of the libel in court, notwithstanding the evidence to the contrary of witnesses of the best type. The marriage registers from Malta, where Mylius stated the marriage of the King had taken place, were produced, and, it is needless to say, no trace of any such marriage was to be found. The twelve months’ imprisonment to which the prisoner was sentenced was said by the judge to be insufficient. Indeed, it is an anomaly of the law that such an inadequate punishment should be the maximum assignable for the offence.[18]

After the sentence had been pronounced, the Attorney-General made the following statement: “I hold in my hands at this moment a document, under the hand of his Majesty the King, from which, with your lordship’s permission, I will read. I am authorised by his Majesty to state publicly that he was never married, except to the Queen, and that he never went through any ceremony of marriage, except with the Queen. And, further, that his Majesty would have attended to give evidence to this effect had he not received advice from the Law Officers of the Crown that it would be unconstitutional for him to do so. That statement, my lord, is signed by the King himself.”

The Mylius-James concoction was of a particularly vicious character. Had it been true, it would have left in the minds of ignorant people the impression that his Majesty’s children were the issue of a morally bigamous alliance. There is too much sedition-mongering already, to fill the minds of the benighted classes with fresh forms of doubt. Certainly, the King has enough to bear in the grave political unrest of the period, without being besmirched and libelled in his private life.

As a last word on the subject of the King’s case, it is pleasing to note that no member of the London Bar appeared for the defence of the accused.

There is at least one anomaly in the law of libel and slander which justifies the existence of this chapter. The publicity necessary to vindicate oneself under present conditions acts as a deterrent to many people in the prosecution of a libeller. The system of hearing cases _in camera_ would be better adapted to the feelings of libelled persons--those who hesitate to subject themselves to the bright blaze of newspaper details--than the existing open court trial. There is no reason why the scoundrel who libels a person should have the right to fling fresh insults and fictitious statements at his victim in the free atmosphere of a court of law--with the full knowledge that the case will be reported in the press. The greater the lie the greater the shrinking--from further publicity on the part of the victim. As matters stand, a man can be prosecuted criminally for a libel, or he can be sued for damages, or both. The form of a criminal prosecution most recommends itself to the thinking mind, for the actual punishment of the guilty must always be more satisfactory than the mere recovery of a sum of money.[19]

Abuse, written or spoken, must not be confused with an actionable tort. One is comparatively safe in describing a man in writing as a “dirty scoundrel,” whereas it might be otherwise were one to allude to him as a “vicious thief.” Some sense of proportion and an exact knowledge of the use and meaning of words are useful possessions to the person of violent temperament!

In Roman law, truth might be pleaded in justification of libel or slander, at least in those cases where the public was interested in the exposure. By the _Lex Cornelia_, it was made optional for the injured person to proceed against the offender either civilly or criminally. Truth is an answer to a civil action under the English law, but truth, coupled with evidence of public expediency, must be taken as essential in defence of criminal proceedings. Where, however, a man, actuated by good faith in the pursuit of his own interests, libels another man, he has a perfectly good defence. A certain individual who believed himself to have been defrauded by the machinations of another, in connection with a will, wrote to a third person for information. References were made to the alleged fraud in the letter, which was published in the press as part of the evidence at a coroner’s inquest. These facts come within the meaning of the immunity above referred to.

It is possible, in this country, to libel the dead, _i.e._, where the libel is calculated to cause pain to surviving relatives or descendants. This is almost an anomaly, but it is a most proper one, nevertheless! The maxim, “_actio personalis moritur cum persona_,” applies, too, for no right of _action_ lies; the right to bring criminal proceedings, is that intended by the reference.

Footnotes

[13] This libel action was based upon the posting by the defendant of two large boards (on his premises at the corner of Oxford Street and Holles Street) bearing respectively the words, “16 and 17, Holles Street, Lord Howard de Walden’s Monument of Iniquity,” and, “In the Holles Street Drama, the young Baron is discovered behind the curtain, pulling the wires for the imprisonment of his old tenant.” The defendant admitted that he had nothing against the plaintiff personally; he said that he wished to draw attention to his grievance against the managers of the Howard de Walden Estate. In the result, judgment was entered for the plaintiff.

[14] Dr. W. Blake Odgers, K.C., is the author of the standard work on libel and slander.

[15] An insult to counsel may be punished as a contempt.

[16] See Appendix C.

[17] It may be noted that five of the signatories of the Declaration of Independence were Middle Temple barristers: Thomas McKean, Edward Rutledge, Thomas Lynch, Thomas Heyward and Arthur Midleton. With the exception of the first-named, all of these gentlemen were Representatives of South Carolina. Thomas McKean, by the way, wrote the Constitution of Delaware in a night, while Edward Rutledge drafted the greater part of the Constitution of South Carolina. The latter was chairman of the Committee of Five who drafted the first Constitution of the United States.

[18] “Edward Frederic Mylius is fortunate, living as he does in times when justice is tempered by extreme leniency. In former times the Kings of England had no lack of power in dealing with those who slandered Royalty. To cite only one instance, King Henry the First had been lampooned by a former friend, Luke de Barre, a troubadour knight. The unfortunate man was condemned to lose his eyes on the scaffold by the hands of the public executioner.

“Many intercessions were made in his favour, but the King replied:--‘No, for this man, being a wit, a bard, and a minstrel forsooth, hath composed many ribald songs against me and sung them to raise the horse-laugh of mine enemies. Now it hath pleased God to deliver him into my hands, punished he shall be to deter others from the like petulance.’ It is not quite clear whether the sentence was carried out as arranged. Some chroniclers assert that De Barre’s eyes were in fact put out, and that he died of the torture, while others say that he cheated the executioner by dashing out his brains against the stone wall of his prison. In either case the incident shows that to libel Royalty in the twelfth century was a perilous venture.”

[19] “Our legal system is apt to give wholly disproportionate importance to a large class of libel and slander actions intrinsically of small account. We provide first-rate machinery for the determination of second-rate or even trumpery questions; disputes not much above the level of those which a County Court judge settles once for all in a rough and ready manner in ten minutes or a quarter of an hour. It is true that there are libels of a cruel and malignant character, more mischievous than most crimes; calumnies industriously circulated as to the private lives of innocent men and women; fictions or distortions of facts for which no punishment is excessive. For such libels the criminal law is the proper remedy. But for a large mass of libels and slanders which engage the time of High Court judges and special juries the legal machinery provided, criminal or civil, is altogether out of proportion to their importance.”--_The Times._

Chapter V

Imprisonment For Debt

Imprisonment for debt, laughable enough, perhaps, in an eighteenth-century comedy, is something of an anomaly in the existing state of justice. Some ten thousand persons annually go to prison for debt, or, rather, for contempt of court, arising in connection with the disobedience of an order of the court to pay a certain sum of money on a judgment.

Of course, credit forms a large field for discussion. It is essential in all communities, among all classes of the population. How it comes into being and how it justifies its existence are questions of more than ordinary interest. In the first place, a man who lives at the rate of a thousand or two a year inevitably has credit given to him unasked. It is a part and parcel of daily life, convenient, if not necessary, in his case. Tradesmen are paid in the usual course of events and matters go tranquilly onwards. If, by mischance, the source of his income suddenly, unexpectedly even, comes to an end, how does he stand? He may owe two hundred pounds or two thousand. His credit has merely been the outcome of custom, usage, not of fraud, or of intention to defraud. Had his intentions been fraudulent, he would have “pushed” his credit far beyond the sum of two thousand pounds, which is merely an extravagant sum for a man with an income ranging from one to two thousand pounds _per annum_. But the two thousand pounds which he owes are, through his abrupt loss of income, a grave menace. If the sum is greatly divided up, his life may be made tormenting, for when a debtor is in difficulties, though they may have arisen through no fault of his own, it is the psychological moment for some creditors, most creditors, to deluge him with writs and summonses--a senseless system in the circumstances--and to pursue him with regiments of solicitors’ office boys, professional debt-collectors and officials from the county court. (The demeanour of these claimants generally savours of mixed brazenness and terror, amusing to the debtor if his _sang froid_ is equal to a little detachment! Carrion of the debt-collecting and process-serving species is very human in its appreciation of “tips.” Indulgence in pleasantry, too, goes a long way sometimes in gaining some petty privilege!)

An instrument of the law known as the “specially endorsed writ” (for sums of £20 and upwards) is quite pestilential to the victim of credit. If the debtor happens to be in possession of a little money, it only adds to his expense to “enter an appearance”; it is usually better, therefore, to let the creditor “sign judgment” in due course. Solicitors still glory in these writs: where the debtor is likely to meet the obligation, an interesting little bill of costs for doing virtually nothing also stands a fair chance of being met without taxation. The costs are generally from three guineas to four pounds in the endorsement on the writ, and they are apt to tempt the person writted to send in a covering cheque for debt and costs, as marked. Service is often effected by the office boy, so that, with the exception of the stamp on the original writ, the expense is practically nothing. In other words, the solicitor earns his three guineas too easily, for there is a tendency not to tax such costs, which are unfair to a debtor who is not particularly pressed for money, who means to pay, and whose failure to do so has been due chiefly to oversight or neglect.

We know that a debt of £50 is a basis for making a person bankrupt. Consequently, the debtor whose funds abruptly cease may have many trials to face with debts which only run to a few hundred pounds. Furthermore, suppose some trifling debt--for ten pounds or so--is pushed into a judgment in the county court. Later on it is matured by the machinations of a solicitor into an order of the court for the payment of so much a month. If the debtor is unable to meet the order he may be committed to prison for contempt of court--arising from disobedience to pay. Thus imprisonment for debt evolves itself.

The abolition of imprisonment for debt has frequently been discussed. Many county court judges are against committals; some, of course, remain in favour of them. Judge Henry Tindal-Atkinson, County Court Circuit No. 58, was one of the witnesses to appear before the Select Committee on Debtors (Imprisonment), Sessions 1908 and 1909. In his evidence, the learned judge favoured the abolition of imprisonment, which he considered generally oppressive, and particularly hard on the working man, whom it placed rather at the mercy of the creditor. “Credit he thinks pernicious,” to quote from the report of the Select Committee, “and extravagant, from the necessarily high prices charged by tradesmen, uncertain that they may not have to wait years for their money. It is witness’s experience--which he illustrates by a comparison of committal orders in different districts on his own and other circuits--that extravagance increases in proportion to wages, the working man in good times spending every farthing and leaving no margin for present debts or future emergencies. Then in the case of process, fees further increase the debt, amounting perhaps to 8s. 6d. in a £2 claim. Witness favours abolition of imprisonment, and thinks it would diminish plaints. He does not think committed debtors necessarily dishonest.”

In the same report, Judge Henry Mason Bompas, of County Court Circuit No. 11, expresses an opinion in conflict with Judge Atkinson’s. “Witness opposes the abolition of imprisonment as likely to check the credit required by the working classes, increasing its cost, and leading them (the working classes) to treat their obligations too lightly.... Witness is of opinion that imprisonment has not sufficient terrors. To the Burnley colliers his Honour’s seven-day sentences appeared so much in the light of a holiday above ground that he has been obliged to increase them. He instances a case of a man in employment doing his imprisonment by proxy, the unemployed substitute receiving five shillings in solatium of the seven days. The efficacy of imprisonment he deduces from the proportion of cases in which committal orders produce payment. Witness thinks credit desirable in certain cases, and that the question of tempting persons to it applies to all classes of society.... With regard to proof of means, witness says his practice is to accept arrangements between debtor and creditor as evidence upon which to make an order, subject to his knowledge of the creditor, as voluntary on the part of the debtor, who has the opportunity of attending court and making his own statements. In cases where no agreement is produced, evidence as to the man’s wages is obtained from the employer upon a printed form, if the debtor does not object. He alludes to the difficulty of ascertaining what a debtor may be paying into court upon other debts (whereby, in fact, his wages may not represent his income, in which case witness would regulate the order accordingly), unless he appears.... Witness opposes a suggestion that imprisonment be held to purge a debtor of the amount for which he was imprisoned.”

Judge Edward Bray favours, in his evidence, the abolition of imprisonment. He opposes “the present system as prejudicial to the interests of the working classes on account of the enormous and expensive and indiscriminate credit which they can obtain.”

Sir Kenelm Digby, G.C.B., at one time a County Court Judge on Circuit No. 19, favours the limitation of the power of imprisonment, but he considers its abolition impracticable as abolishing credit.

Judge Cyril Dodd, Circuit No. 16, stated in his evidence that he desired the abolition of imprisonment for debt; he also recommended the widening of the present definition of crime.

Judge John Gent, County Court Circuit No. 12, favoured, under certain conditions, the abolition of imprisonment for debt. “He would retain imprisonment for debt,” so the report goes, “in fiduciary cases and for default by a solicitor in payment of money when he has been ordered to pay the same, also for default in bankruptcy, taking other cases of fraudulent debt into the criminal courts. He reprobates the payment by results of registrars as putting an obstacle in the way of judges who conscientiously try to restrict the issue of committal orders, by placing them in an invidious position of responsibility for the reduction of the salaries of the registrar and his staff. He instanced his own feelings on finding that he had been the means of reducing the salary of the registrar at Huddersfield £200 or £300.... He thinks registrars favour the present system.... Witness disapproves of credit as vicious, and unnecessary, even in bad times, when the poor, he thinks, would be wiser to accept charitable assistance. He believes credit to be mainly given on the power of imprisonment in reserve.... Witness thinks the requirements as to proof of means difficult to work and unsatisfactory, the Court of Appeal having decided that ‘means to pay’ are means to pay after the discharge by a debtor of his obligation of family maintenance.”

Judge Henry Best Hans Hamilton, of Circuit 4, opposed, before the Select Committee, the abolition of imprisonment, “as likely to swell the numbers of improvident working men, and, by increasing the difficulties of obtaining the credit necessary in bad times, throw both the honourable and the improvident on the workhouse or parish at such seasons. He considers execution against goods (generally claimed by relatives or obtained on the hire system) useless against the improvident or dishonest.”

Judge Arthur O’Connor, K.C., of County Court Circuit No. 2, “approves the power of imprisonment as a necessary instrument in securing payment of judgment debts which would otherwise remain unpaid.”

Judge William Stevenson Owen (now deceased), Circuit 24, favoured the total abolition of imprisonment for debt, “save, perhaps, for damages for tort.”... Further, “He would make default in a fiduciary capacity, or by an attorney or solicitor, or default in payment for the benefit of creditors of any portion of a salary or income, criminal misconduct.”

His Honour Judge Edward Abbott Parry, lately of Circuit 8, but now appointed to replace the late Judge Emden at Lambeth, stated, when giving his evidence before the Select Committee, that the present system was to be disapproved (1) as favouring disreputable trade, (2) as failing to punish dishonesty, (3) as a means of blackmailing friends and relations of the debtor, (4) as injurious to the poor, etc. He favoured the total abolition of imprisonment for debt, at least theoretically. He added that he believed in credit as a necessary evil.

Judge Sir William Lucius Selfe opposed the total abolition of imprisonment for debt so far as the working classes were concerned. He made certain exceptions, however, in which he would abolish imprisonment, notably in cases arising out of money-lending transactions.

Judge William Wightman Wood, of Circuit 20, another witness, favoured the abolition of imprisonment.

Mr. S. Savill, Chief Clerk at Marlborough Street Police Court, in his evidence, divided debts recoverable before Courts of Summary Jurisdiction into three classes: “I. Sums recoverable similarly to civil debts summarily recoverable under the Summary Jurisdiction Act, 1879, _i.e._, cases in which the County Court has concurrent jurisdiction. In this class, a judgment summons necessitating proof of means must precede committal, and imprisonment is rare. II. Sums due under orders of the Court in cases of affiliation and maintenance orders and orders against persons legally liable for contributory maintenance of a child sent by the Court to a reformatory or industrial school. In this and in Class III. imprisonment is punitive, and purges the debt. III. Sums not recoverable under summary jurisdiction, comprising highway rates, poor rates, etc. Here stipendiary magistrates and ordinary justices have concurrent jurisdiction. Committals in this respect scarcely affect the poor classes, who live in houses and tenements for which the owners are, by consent of the local authority, rated up to £20, the power possessed by justices and stipendiary magistrates to discharge from payment any persons proving inability to pay from poverty not being used in the opinion of the witness to the extent intended by the Statute.”... Witness also suggested that imprisonment “as a screw” was abortive, and really only partially deterrent in its effect; he submitted, however, that if imprisonment for debt were abolished, strengthening of the punitive law would become necessary.

M. Maxime de Gorostarzu, a French advocate, Counsel to the French Consulate-General, supplied the Select Committee with certain information on the French law. To take an extract from the report, “Witness states that imprisonment for debt in civil matters is not possible in France, debts for goods supplied being only recoverable by execution, nor does witness think its want is felt.” Imprisonment for debt was suppressed by the Revolution in 1793, re-established within the next two years, again suppressed in 1848, but re-established once more. In 1867 “it was finally restricted, in deference to public opinion.”

Mr. John Arthur Barratt, a member of the English Bar and of the New York Bar, stated before the Select Committee that, generally speaking, imprisonment for debt on civil process was impossible in the United States, except in cases containing an element of tort or fraud. There are, however, States in the Union in which imprisonment for debt exists, notably in Massachusetts.

Mr. Peter Morison, a solicitor practising in the Scottish Courts, stated, in his evidence, that imprisonment for debt was abolished in Scotland in 1880, except for taxes, fines or penalties, rates or assessment, sums decreed for aliment and _praestendum_ orders (_i.e._, orders by a judge to perform an act).

Mr. Ernest Joseph Schuster, a member of the English Bar, and a Doctor of Laws of the University of Munich, explained that the rules as to imprisonment for debt on civil process were uniform throughout Germany. “Imprisonment for debt _per se_ does not exist, but, by provisions of the German law for dealing with mischiefs which might arise, debtors may, for the protection of their creditors, be imprisoned.”

From the foregoing matter, which is derived for the most part from the report of the Select Committee (constantly referred to in this chapter), it will be seen that imprisonment for debt is by no means generally supported, either by the judges themselves or by those persons associated with judicial administration. Tradesmen of the inferior type support imprisonment with fearful anxiety lest it be abolished. To them, it makes a debt a lever for persecution. Indeed, it is used as a method of _quasi_-blackmail against the debtor of the lower classes. Take the unwary working-man in regular employ. He contracts a debt--he may even be persuaded into it--and the first thing he knows is its maturity into a county court judgment, followed by an order to pay (so much at stated intervals until the debt is liquidated). The man is informed that he will be sent to prison unless he finds the money. He is thus coerced and terrified by the debt-collector, until he suffers himself and those dependent upon him to go without food to meet the payments. The menaces used to bring this state about would not come within the meaning of blackmail, legally, but they savour so strongly of it in practice that “imprisonment for debt” becomes an injustice and an anomaly of the law. Imprisonment for whatever cause and for whatever time is imprisonment, and in the working-man’s mind lies the certainty that his employer, when the latter hears of it, will discharge him forthwith. The tangled terrors of his predicament are worked upon by the debt-collector, a person, we may assume, of even greater persistency than his prototype who pursues the debtor of the upper class.

The Select Committee, though it did not actually recommend the abolition of imprisonment for debt, was only luke-warm in its endorsement of the measure. Many county court judges state definitely that they will not inflict the penalty, for that it is a penalty, and a very serious penalty, cannot be gainsaid. It would be absurd to suggest that all credit would fall apart in the event of the abolition of imprisonment for debt. Indeed, except among the “instalment-system” creditors who prey on the poorer classes, there is no reason to suppose that credit would be affected to a material extent by such a change. As a whole, imprisonment for debt can be labelled a legal fiction. It is imprisonment for debt, and yet, more strictly, perhaps, it is a committal for contempt of court. The terms in this respect are interchangeable. The root of the trouble is debt.

“Under the (Roman) empire, every judgment required to be reduced to writing, and signed by the judge. It was entered in a register, and a copy was delivered to the parties. In the East, after Arcadius, the judgment might be drawn up in Greek, but the use of Latin was retained at Constantinople down to Justinian’s time.... After sentence, the debtor was allowed thirty days for the payment of the debt under the law of the Twelve Tables. At the expiration of that time he was assigned to the creditor by the prætor, and was kept in chains for sixty days, during which he was publicly exposed for three market-days, and the amount of the debt proclaimed; then, if no person released the prisoner by paying the debt, the creditor could sell him as a slave to foreigners. When there were several creditors, the letter of the law allowed them to cut the body of the debtor in pieces, and divide it among them in proportion to their debts; but some writers contend that the words _partes secanto_ are to be taken in a figurative sense, as referring to a division of the price when the debtor was sold as a slave.... The prætor allowed a delay of two months for payment of a judgment debt; and Justinian extended the period to four months, both to the defendant and his sureties, after which the debtor might be imprisoned, not in the house of the creditor, as in early times, but in a public prison.”[20]

One can scarcely leave a chapter on civil--as opposed to criminal [law]--coercion, without some mention of the writ of _ne exeat regno_. It has, perhaps, a certain distant relationship to “imprisonment for debt:” “It sometimes happens (for instance, where a plaintiff is unable to establish his case except upon the admissions of his adversary) that a defendant may, by leaving the country and so putting himself beyond the jurisdiction of the English Courts, seriously prejudice or perhaps altogether defeat a just claim. To prevent such a miscarriage of justice, suitors in the High Court of Chancery could for many years before the coming into operation of the Supreme Court of Judicature Act, 1873, apply for and in a proper case obtain a writ of _ne exeat regno_, addressed to the Sheriff of the county where the party named therein was supposed to be residing, and commanding him to cause such party to come before him and give sufficient bail in the sum endorsed on the writ, that he would not go or attempt to go into parts beyond the seas without leave of the Court, and on his refusal or neglect to comply with this demand to commit him to prison.... This writ, which issued only out of the Court of Chancery or the Court of Exchequer on its equity side, so long as it had an equitable jurisdiction, was originally a high prerogative writ by which the Crown was enabled to prevent any of its subjects from leaving the country when their services were required in it. The writ was subsequently applied to cases between subjects, and the principles which guided the Court in directing or refusing its issue, became by degrees clearly defined, so that Lord Eldon, L.C., said: ‘This Court, if not bound _ex debito justitiae_ (and I do not say it is so bound), is bound in the exercise of a sound discretion to grant the writ, if the case be a case in which the writ ought to be granted.’... Again, ‘if the Court, having granted time for payment of money, is satisfied before the time arrives that the party is going abroad to prevent payment of the money, it will undoubtedly interpose.’... Under the present practice, in order to obtain the writ, the applicant must show (1) that the circumstances are such that the Court of Chancery would have granted the writ, and (2) that the case is one which falls within sect. 6 of the Debtors’ Act, 1869.”[21]

Imprisonment for debt is nearly as old as the hills--under the Roman _régime_, as will be seen, it literally flourished--but it is not wanted in this country at this time and by a fictitious process, too, which is regarded with disfavour by many of the judges empowered to employ it.

Footnotes

[20] Lord Mackenzie.

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

Chapter VI

The Need For The Right Of Property In Surnames

A very anomalous side of the law is to be found in connection with the use of surnames: their variation, their complete change, etc. John Smith may freely call himself John Montmorency or John Plantagenet, or any other name in keeping with his fancy. He may even go a step further, and call himself Baron Montmorency or Viscount, or Count, or Marquis or Duke, or whatever else he likes. So long as the name and title do not cause persons to give him credit which they would not give him as John Smith, he is comparatively immune from the meshes of the law. The whole question therefore evolves itself into a simple issue--_i.e._, is the assumption of the title or surname with a view to imposing on people, and does it in fact so impose upon them that they are led to part with goods or money on the strength of the success of the imposition?[22]

Many Jews and other aliens on becoming established in this country drop their patronymics, which may end with a “stein” a “berg” or a “ski” and call themselves instead, “Gordon,” or “Howard” or something else equally reassuring. That such a loose state of affairs should be permitted is an indirect incitement to fraud. Admittedly, “Cohen” or “Solomon” is not, perhaps, an incentive, _primâ facie_, to business relations, whereas “Harris” or “Langton” may be.

It is utterly iniquitous the way the family names of British peers have been seized upon by the sons of Israel. One finds some of the greatest names in the history of the country applied to the offspring of Whitechapel. Some legal check is needed to prevent this, even where no direct intention exists to commit a punishable fraud by means of the fiction. It is not suggested that those Jews who have reached power in England use their adopted appellations to carry on swindles. But it is improper that they should prosper under the great name of some English or Scottish ducal house, when they have never perhaps even so much as lent money to its members in the junior line! Several peculiarly flagrant instances of the kind suggest themselves to the mind. Great dignity has sometimes been bestowed on the scions of a Hebrew house whose adopted name has clashed unpleasantly with the noble name of an historic family. Why a name like “Sowinski” should be replaced by “Cavendish” one fails to see, particularly as a name carries with it definable or indefinable, conscious or unconscious, associations, which weigh.[23]

The offspring of the original “Sowinski” becomes “Charles,” or “Edward,” or “George”--“George Cavendish.” Obviously, such a person has reached a financial status far above interest in trivial fraud, though his name is a constant fraud of sorts on some one, particularly if he remains only a name--_invisible_! To descend to the lower branches of struggle for gain by imposture, we find “Claude Churchill” lending money, practically without interest, “Edwin Graham” giving bank notes away on mere notes of hand, and “Hubert Douglas” most eager to cash post-dated cheques, literally for nothing! It is incredible! How a “Lazarus” can become a “Scott,” an “Aarons” an “Ogilvie,” and a “Niemann” or a “Katz” a “Murray,” is far beyond reasonable process of deduction! It is a gross anomaly of the law that it should be tolerated. A High Court judge recently drew a limited parallel--the assumption of noble names by money-lenders. “What’s in a name?” may be asked by the illiterate or semi-illiterate man, and yet he is as promptly influenced by it as persons to whom a name admittedly suggests something tangible. In the case of “John Smith,” we have a name which is not distinctive, which, indeed, must be confusing and burdensome to its possessor. He may have a much larger banking account than an individual of distinguished name and lineage, and, if so, he is perfectly justified in using it to change his name to “Boggs,” or “Hoggs,” or “Noggs” or whatever other name exists in his maternal line. However lowly his origin, he should be compelled to choose a name associated with his parentage. He should not be allowed the option of assuming a high-sounding name to which he can lay no claim. His choice should be limited to the names of his ascendants. In this way, there would be some semblance of actual justification for discarding a commonplace patronymic. The candidate for change of name could effect his purpose by deed poll, an easy task involving no proof of pedigree or gentle birth. Affidavit should, however, be made that the name chosen, on the plan here suggested, was the name of such and such an ascendant of the person making the change. This would be an effort on the part of the law to reduce the system to order and method. In the case of Russians, Poles, aliens of suggestive and hideous surname, whatever change of name allowed to them, such change should conform with their foreign origin. Provision for the infliction of penalties for disobedience in this connection would help matters in the right direction. The whole question may seem trivial, but from the ramifications which spread out from the use of an _alias_ or fictitious surname, much deception, or fraud, or improper profit almost amounting to fraud, frequently, if not generally, results. This is stating the case in a very mild way.

Establishing the identity of an alien in this country should also be made easier by compelling every such person to produce documentary evidence of his (or her) identity on landing, and to make such person subject to interrogation or examination on the point at any subsequent time. This is a side-issue; still, it is linked to the main question here raised, namely, the chaotic laxity permitted, or, at any rate, not prevented, with regard to the change of a person’s name. The method of the deed poll, as at present applied, though preferable to the impromptu nomenclature adopted by the criminal classes, is certainly not above reproach. It allows too much license in the choice of a name. Change of surname should, as already pointed out, be restricted to cases where the claim to the new name is at least colourable, _i.e._, permissible only where the name desired is the name of an ascendant.[24] If some of these suggestions were carried out, there would be no more mad hunts for practically anonymous criminals like “Peter the Painter” and “Fritz,” the suspected murderers in the notorious Hounsditch fiasco. The wonder is that no one has apparently yet seized upon the feeble system or absence of system in checking the rightful names of the inhabitants of these islands. Legislation for the punishment of persons making an improper use of surnames would be distinctly useful. There would be fewer Polish “Harrises” and Russian “Montagues” or, indeed, “Montagus” (less the “e,” for in some cases this further audacity has been exhibited), in England than there are to-day. Even the descendants of these august impostors would tremble in their boots! “Solomon” or “Aaronstein” or “Samuel” would also become their appearance better in many cases! These remarks, though they obviously refer to Jews, are not intended to offend respectable Jews who courageously adhere to the ugly names of their ancestors. The Jew who says he is a Jew and passes under a name properly associated with the Jewish race calls for no rebuke, nor, indeed, for anything, very often, except genuine admiration. It is the impostor, great and little, criminal or merely falsely ambitious, who attracts hostile attention, with some substantial justification, be it confessed.

With regard to the small fry of the improper hyphen, there is nothing to be said. Thousands of persons use hyphens who, if they had any sense of proportion or self-respect, would hastily discard such a laughably inconsistent sham. Unless a hyphen expresses the legal joining of two surnames, thus bringing together the pedigrees of two houses, it conveys nothing but _bourgeois_ affectation and impudence. It is a feeble fraud at best, scarcely worth condemning. Different causes bring about the legal use of the hyphen. Sometimes, a rich father-in-law without heirs male directs by his will that his daughter’s husband shall, by Royal License, assume the additional surname, whatever it may be, which becomes extinct at his (the father-in-law’s) death, before or after his (the son-in-law’s) own name. In this way the hyphen comes into being, and the name which would have perished is duly kept alive. At other times, the additional surname of an ancestor, where that ancestor bore a distinguished name, in the maternal line, is revived by process of law on the voluntary initiative of the person desirous of possessing the name. Thus, a person representing in his blood an historic family through, for example, his father’s mother, may by Royal License assume his grandmother’s maiden name, the more justifiably if she was in the nature of an heiress or co-heiress of the house. The name, of course, may be joined to the existing surname, before or after, with a hyphen, or it may be taken alone in substitution for the existing surname.

Reference has been made to the freedom with which a man may call himself by any name, without legal formality, and to the equal freedom with which an alien may discard his own name and by deed poll assume the honoured name of a great English house. (Alas, the Royal Licence has been used in at least one glaring instance, too!) It has also been made obvious that such practices should be checked by definite legal means.[25]

The countries where conscription is customary are well protected against change of name abuses. Conscription would solve the difficulty here; but there are ways and means of putting down a most iniquitous practice, a criminal practice in its intent, more often than not, by ordinary legislation. Actors and actresses could be exempted because they do not appear to offend in the sense that the impostors condemned in the foregoing remarks offend.

It so happens that a further judicial allusion, as to the wrongful assumption of great names, has been made, and duly reported in the press. “As usual on Saturday,” says the report, “a number of short cause actions, generally of a money-lending character, came on for hearing, in Mr. Justice Darling’s Court in the King’s Bench Division yesterday. One of them involved considerable argument upon a point of law with reference to the passing, by a bank, of a cheque, which, it was alleged, had been altered by the addition of the word, ‘Limited,’ to the plaintiff company.

“Counsel: ‘But at the time the cheque was drawn the plaintiffs were not a limited company, and the title therefore was not their real title.’

“‘Oh,’ commented Mr. Justice Darling, ‘such a thing does not surprise me. I sit here on Saturday and hear all sorts of persons called Fortescue, Plantagenet, Egerton, and so on, but those are never their real names. You must not think that on Saturdays I expect people to give their real names here, because I don’t!’

“His lordship was obviously referring to certain money-lenders whose registered trade name, as distinct from the name of their parents, has already given rise to judicial comment.

“The decision eventually went in favour of the defendants, who had paid the cheque to one of the plaintiffs.

“There was considerable disturbance in the passage of the court when another case was called, some litigants leaving the court, and others hastening to the vacant seats.

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

“‘Quite a Saturday name,’ observed counsel.

“‘All the Burkes and Debretts come here on Saturday,’ replied his lordship, amid laughter.”[26]

Casual mention has been made of actors. Of those well-known, Henry Irving was born Brodribb; Herbert Tree, Beerbohm; while George Alexander’s surname was Samson. In no one of these instances was a great family name improperly assumed, and it stands to the credit of these theatrical leaders that such is in fact the case. There are several persons on the English stage who are perfectly entitled to describe themselves by well-known names. Lord Rosslyn, Lord Yarmouth, Lord Dangan, Lady Constance Richardson, and the Hon. Helen Douglas-Scott-Montagu, are among the number. Mr. Adolphus Yane-Tempest, also distinguished in the theatrical world, is a Londonderry, while Mr. Cosmo Gordon-Lennox, one of the Richmonds, is another actor entitled to a distinguished name.

Constant use of a name is said to impart some element of right to the name so used, but unless the deed poll is brought into operation, one might reasonably suppose the name in question to be subject to attack as an _alias_. Writers are given to the assumption of the _nom de plume_. Beaumarchais, the hardy author of _Le Barbier de Seville_ and _Le Mariage de Figaro_, was originally Caron by name, but there is reason to believe that he became “De Beaumarchais” by legal process. Some people even suggest that “Shakespeare” was an _alias_ for Bacon! Many instances have occurred where writers, distinguished and otherwise, have adorned their work with fictitious names. Modern examples pass through one’s mind in dozens, but the persons forming them have not gone to the extremity of using their _noms de guerre_ in private life. Sometimes two people, prominent in different spheres, bear the same combination of names, where the names are not particularly commonplace. There is a novelist, of some reputation in America, who like the present Home Secretary, is known as Winston Churchill. As the Home Secretary’s “Winston” is derived from an ancestress who married into the house of Marlborough, it is difficult, without guidance, to see how the American novelist derived _his_ “Winston,” for “Winston” is said to be his name.

Juggling with names should be made a punishable deception. There are exceptional circumstances, already roughly outlined, which warrant the legitimate assumption of a name, justly celebrated, perhaps, where it is represented in the blood.[27] Cases of the kind do not come at all within the intention of these remarks, which are directed against foolish or fraudulent persons who have no colourable right to the names they assume. These offenders should be properly labelled by the law, and not by the vagaries of aspiring imaginations or criminal subterfuges.

Footnotes

[22] “Application was made at Clerkenwell, to-day, for process against a man calling himself ‘Viscount Mackenzie,’ for deserting his wife and for obtaining credit by false pretences from his landlady, Mdme. Gabrielle Suffolk, of Ampthill Square, St. Pancras.

“It was stated that the man had represented himself to be ‘Viscount Mackenzie, of Mackenzie, in Ross-shire, Duke of St. Omars (a surgeon-general in H.M. Army).’

“Mr. Bros heard the wife first.

“‘Viscountess Mackenzie,’ as the landlady called her, said she was married to the man on January 7th, and he left her ‘four weeks to-day.’

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

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

“The magistrate then called the landlady.

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

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

“_The landlady_: ‘He said he was a surgeon-general in H.M. Army, and would get his pension at the end of the month.’

“It was stated that the ‘Viscount’ had left his will behind him, and the magistrate remarked that that did not help him.

“This will was produced in court the previous afternoon, when the wife summoned the landlady for detaining her property, and stated that her noble husband had induced her to part with all her money. The will gave and bequeathed to ‘the Viscountess’ £6,000 a year for life and ‘all the family plate.’

“On the sworn evidence of the landlady, a warrant was granted.”--_Evening newspaper._

[23] “Noblemen, and their children, carry about with them, in their very titles, a sufficient notification of their rank. Nay, their very names (and this applies also to the children of many untitled houses) are often, to the English ear, adequate exponents of high birth, or descent. Sackville, Manners, Fitzroy, Paulet, Cavendish, and scores of others, tell their own tale.... Such persons, therefore, find everywhere a due sense of their claims already established, except among those who are ignorant of the world, by virtue of their own obscurity.”--De Quincey, _Confessions of an Opium-Eater_.

[24] Or where the change is to be effected by Royal License, when the assumption of the name and arms might be prevented.

[25] A solicitor on the Rolls cannot change his name except by the leave of the Master of the Rolls, who requires either a Royal License or a deed poll enrolled plus advertisements. (A note by Mr. Cozens-Hardy, the well-known barrister, who is, of course, the son of the Master of the Rolls, the Right Hon. Sir Herbert Cozens-Hardy.)

[26] Sunday newspaper.

[27] Mr. Samuel Beach Chester is the only child of the eldest (married) son, the late Captain Paul Townsend Jones, Jones’ Independent Battery, Pennsylvania Artillery, of the late Rev. Samuel Beach Jones, D.D., of Bridgeton, New Jersey, a trustee of Princeton University, and a graduate of Princeton and Yale, who married the eldest child (all daughters) of the Rev. John Chester, head of the Wethersfield branch of the Chesters of Blaby in Leicestershire. The Chesters of Wethersfield stood at the head of affairs in Connecticut in the 17th, 18th, and (early part of the) 19th centuries. By order of the New York Supreme Court, 1901, Mr. Chester assumed the maiden name of his grandmother, Sarah Ralston Chester. Mr. William Chester represents the junior male line and Mr. Beach Chester the senior female line, genealogically, at the present time. The Chesters of Wethersfield, Connecticut, are not related to any other family of the same name established in Connecticut or elsewhere in the United States.

Chapter VII

Literary Censorship

There seems to be some need for the revision of the law applied to literary productions. The subject is a peculiarly important one to writers, printers and publishers, and, to a lesser extent, to the public at large. When a publisher undertakes the publication of a novel, for example, he involves himself in a liability for a considerable sum for its production. The unknown writer may, by a certain contributory process, bear a part of the burden borne by the publisher. Only the writer with a name of one sort or another, or with a certain circulation, can reach the stage which confers the advantage of publication for reward. The publisher has his difficulties to face in securing the services of a writer of this class, and, when these difficulties have been overcome, he has the financial burden of production to confront. This burden is in itself reasonably heavy, with the result that he has to be most careful to avoid publishing any matter, which may be condemned by the authorities as “indecent.” There is something to be said as to what constitutes indecency, of course, and this very uncertainty makes the publisher’s _métier_ the more trying. It is more than trying; it is unfair.

The translated works of Marcel Prévost, a writer of genius, a member of the Acadèmie Française, have been suppressed time and time again. Théophile Gautier, Émile Zola, Guy de Maupassant, Gustave Flaubert, and many other writers of the first water, have had the English translations of their works suppressed. Admittedly, the freedom with which sexual relations are dealt with by these writers has sometimes been construed into indecency in this country. Certainly, the translations, or many of them, are inferior in workmanship, and lend themselves to condemnation by their very crudity. However this may be, it is perfectly obvious that the legal method of dealing with indecent or questionable literature is thoroughly inadequate, uncertain in its effect, and needful of drastic improvement. That is to say, primarily, a definite protection and security should be provided for the publisher against loss arising out of the suppression of his publication. It may be said, with partial propriety, that the best way for a publisher to protect himself is not to publish _risqué_ works. But it must be remembered that a publisher is not necessarily an expert on what actually constitutes legal indecency, nor are his readers or advisers.

To be able to judge with some exactitude the decency or indecency of sexual problem novels requires both legal and literary skill It is not always so, naturally, though a certain number of works of literary merit demand a high sense of discrimination in deciding their moral limits. It is not precisely the immorality of a book which settles the question: it is rather its treatment. There are many gross novels, written by persons of inferior education. No doubt can exist as to their indecency. But the publisher, perhaps, who undertakes their publication, is merely careless in his methods. It is his duty, indubitably, to take reasonable precaution; having failed to do so, his position is a bad one. He may be prosecuted, committed for trial, and imprisoned or fined, along with the printer. He also has to bear the loss of production, a consideration in itself, as stated. His “suppressed” novels become unsaleable at once.

A recent case at Bow Street Police Court was in a sense interesting from the legal standpoint respecting indecent books. A prosecution was started against the wholesale distributors of certain objectionable novels, the work of an anonymous writer. The identity of the publisher was not disclosed on the title pages of the books, nor did the printer’s imprint appear. The distributors, therefore, stood _in loco parentis_. They were mulcted in fines and costs to the extent of about £400. The novels seized were ordered to be destroyed, as a matter of course.

The technical basis for fines on such a scale was the absence of the printer’s imprint--a legal necessity. The penalties attaching to an infringement of the law on this subject make it worth the while of every person responsible for the production of a book to preclude the possibility of an oversight. Certainly, it may be assumed that the mind of the magistrate was (in deciding the case above referred to) largely influenced by the gross character of the books. Nevertheless, the printer’s imprint should always appear.

By an anomaly of the law, a writer is not liable for the indecent contents of his (in the recent case at Bow Street, “her”) books. That is to say, so long as they do not constitute a libel upon someone. The brunt of the trouble falls upon the printer and the publisher, more particularly, in practice, upon the publisher.

One point which must strike the mind of any person interested in the examination of books for publication is the very proper hostility of the magistracy towards books, however excellent in literary quality, which touch upon unnatural offences. In a novel of some merit--“_The Hazard of the Die_”--a veiled suggestion, very veiled, it seemed, of an unnatural association, ran through a portion of the book. It was suppressed by the authorities, though it bore the imprint of a respectable publisher.

Writers are at present hampered and restricted in the treatment of ordinary sexual relations by many of the more important subscription libraries. A writer has to consider his publisher, and the publisher has to give some thought to his market. What has sometimes been described as “the library ban” curtails the field of description to a greater extent than the public authorities.

Whether or not all these bulwarks improve or protect the morals of the kingdom is a moot question. To the ruthless mind, they seem to savour of excess. Why any one body of persons, of no particular qualification, should decide what is good and what is harmful for another superior order to read is fantastic and even stupid to a degree. This _quasi_-censorship may be beneficial in theoretically protecting the young and innocent mind from coming into too early contact with pages from life, but it is hardly considerate of those maturer readers who may be anxious to be drawn from their own _ennuis_ by the light treatment of other people’s. The suppression of all printed matter relating to sexual difficulties, from divorce reports to novels and plays, from classics to social memoirs, might tend perhaps to check an increase of knowledge in the very young, though as long as we are human beings and not metallic automata it may be presumed with some safety that sexual relations will scarcely become extinct! Why the adolescent mind should have to be rescued from a problematic contact with certain printed matter, when, _per se_, proper upbringing should turn it against depravity, one almost fails to see.

Of course, questions of morality and immorality have their degrees. For instance, the most ardent supporters of freedom in connection with literary works would not be able to give countenance to such gross indecency as that exhibited in John Cleland’s notorious book. There are similar publications, secretly distributed at the present day, which would revolt the most worldly libertine.

Indeed, the dissemination of descriptive debauch should not stand on a legal par with the publication and distribution of ordinarily indecent books, such productions, for instance, as those named in the recent Bow Street case. With regard to these latter publications, all of which, in their original state, were examined and condemned by the present writer, prior to the police prosecution, crudity of tone and workmanship were as conspicuous as defective decency. The novel translated from the French of Marcel Prévost was almost as careless and rough in its finish as the English novels which fell under the destruction order at the same time. Though all of these publications were in places definitely indecent, unquestionably so, they did not approximate the filth which finds a more secret means of distribution.

Undeniably, it is extremely difficult as a rule to obtain information which will reasonably lead to a conviction. Much the same may be said in connection with the sale of indecent photographs, “pictures,” etc. This disgusting traffic appears to exist, if it does not actually thrive. An alien, one of those aliens clothed in the name of “Harris,” as it happened, received a sentence of three months’ imprisonment, to be followed by deportation, from the Common Serjeant in February, 1911, for selling indecent photographs. Cases of the so