페이지 이미지
PDF
ePub

for it as a poet, and yet seventy years ago he described the ancient lot of the prisoner in the following lines :

“No tribe, with rusty camlet gowns

And shabby horsehair wigs,
Harangued the upper gallery

In favour of the prigs.

No troops of venal witnesses,

Insured to perjury,
Were ever brought by knaves who sought

To prove an alibi.
For sundry wise precautions

The sages of the law
Discreetly framed whereby they aimed

To keep the rogues in awe.
For lest some sturdy criminal

False witnesses should bring-
His witnesses were not allowed

To swear to anything.

And lest his wily advocate

The Court should overreach,
His advocate was not allowed

The privilege of speech.

Yet such was the humanity

And wisdom of the law,
That if in the indictment

There appeared to be a flaw.

The Court assigned him councilors

To argue on the doubt,
Provided he himself had first

Contrived to point it out.
Yet lest their mildness should, perchance

Be craftily abused,
To show him the indictment they

Most sturdily refused.
But still, that he might understand

The nature of the charge,
The same was in the Latin tongue

Read out to him at large." Doubtless most of this had passed before 1898, but it was not until that year that the accused became a competent witness on his own behalf in an English court. In 1907 the Court of Criminal Appeal was erected with jurisdiction to review either conviction or sentence on matters of fact, or mixed law and fact, or upon any other ground; to quash the conviction or modify the sentence either by reduction or enlargement of its terms but, singularly as it seems to us, without power to grant a new trial. Latest of the innovations in this field is the Indictments Act of 1915 under which the language of all indictments has been reduced to the smallest compass. Years ago when the jail fever raged in Newgate prison, the judges of the criminal courts buried their noses in fancied protection in bunches of aromatic herbs. To this day when the summer term at the Central Criminal Court, the Old Bailey, is opened, the Lord Mayor in his robes and chain, attended by his sheriffs and the bearers of his sword and mace, the attending Alderman and the judge enter the court room bearing each his nosegay, and the judicial dais is strewn with the aromatic herbs of former days. In such surroundings one confidently waits to hear all the rolling phrases of a common law indictment, and feels it a distinct anachronism when the clerk reads out a charge containing nothing more than this:

“ The King vs. Albert John Brown. Albert John Brown is charged with the following offense: Statement of offense: murder.

Particulars of offense: Albert John Brown on the 19th day of October, 1920, in the County of Essex, murdered Caroline Smith.”

Latest, although not least, of the portents of change are those due to the Act for the Removal of Sex Disqualification, passed in 1919, which has ushered in, not without much wagging of heads, the woman barrister, the woman solicitor and the woman jury member. When mixed juries made their first appearance there was much discussion among judges and lawyers of the proper method of address, since the time honored “Gentlemen of the Jury” was manifestly obsolete. The difficulty was finally resolved by the adoption of the somewhat obvious phrase “ Members of the Jury.”

And yet even in courts so modern and so new as the Court of Criminal Appeal, antiquity still rears its hoary head and will not be denied. I recall one case, in which our distinguished guest was a participant, where the Court was called upon to determine the jurisdiction in a charge of perjury of the Justices of the Peace for the Liberty of Peterborough, and which involved a discussion of English history and of royal charters running back to ecclesiastical grants from Edgar the Saxon and Wolfranc the Elder. What an example such a case affords of the blending of the old and new which is at once the charm and strength of England and of English law? Is not the crown of the political genius of the Anglo Saxon, his ability to make great changes, both in law and government, without resort to violence? His movement may be slow, at times so deliberate as to be imperceptible, but none the less he moves. The radical of today is the conservative of tomorrow; the rearguard camps at night by the smoking watch fires from which the vanguard departed in the morning; but without breaking ranks or losing touch the whole column moves steadily onward to a broadening future.

In opening my remarks I promised not to burden you by any reference to the problems of the hour. May I be released from that engagement for a closing word? When all comparisons have been made, and all differences recounted, the fact remains that the members of the legal profession in England are in very truth our brethren over seas. The common law by which we live has its roots in English soil. The judges who interpret it on both sides of the water look to their distant colleagues for counsel and assistance, and the principles of liberty which it embodies are the rod and staff by which our peoples walk. Trained in the same school, professing the same great ideals, sharers of like immunities and privileges, there rests upon the legal profession in England and America a duty which is joint and not several, compact and not divisible. The nations whom they serve stand today supreme in present strength and in potential energy. Upon them Destiny has laid accordingly the largest responsibility for the immediate future of the world. Shall not the lawyers, who lead as well as serve them, guide them in the ways of mutual confidence and joint endeavor in the service of mankind ?

OUR COMMON INHERITANCE OF LAW.

BY

THE RT. HON. SIR JOHN A. SIMON, K. C.

FORMER ATTORNEY-GENERAL OF ENGLAND.

Eighteen summers ago, in weather nearly as sultry as this, you, Mr. Root, were sitting in the Foreign Office in London as a member of the International Tribunal appointed to define the boundaries of Alaska; and I was the most junior and the most obscure of the counsel appearing on behalf of the British Government. It is a peculiar pleasure for me to appear before you again eighteen years later and when I see before me this array of American lawyers and realize that I am, perhaps, the only member of the English Bar present at this gathering, I cannot be too thankful that this is no occasion of controversy between the lawyers of the one country and those of the other; but is, instead, an occasion when we celebrate and put on record our feelings of mutual friendship and good will. I am reminded of the reply of Father Healy, when that learned and witty cleric was asked by one of his flock what was the difference between the Cherubim and the Seraphim. Father Healy replied, “Well, there used to be a difference between them, but they have made it up."

And if anything could add to my pride and pleasure in being your guest here today, it would be that I am invited to follow my friend Mr. John W. Davis, whom all Englishmen hold in the highest admiration and regard. Our only complaint against American ambassadors in London is that they stay there too short a time. Sir Walter Scott once observed that it was just as well that horses and dogs did not live as long as human beings, for if they did we should never get over their loss. And Mr. Davis will not, I feel sure, take amiss if I compare British affection for him with their devotion to the most noble and faithful of the friends of man. I will venture to repeat of him, and of all Americans like him, what I took occasion to say at the Independence Day banquet in London last year—that I am con

vinced Shakespeare had Mr. Davis in mind when, in his play called “The Tempest,” he puts in the mouth of Miranda, when her Enchanted Isle is first visited by Ferdinand and his comrades from overseas, the ecstatic exclamation,

O, brave new world

To have such people in it! Mr. Davis has spoken of the fraternity of the Bar, and I rejoice to address you today not merely as my brothers-in-law, but as my brethren. We are sons of the same mother, and we inherit a common tradition. The Common Law is like a rich seam of precious metal lying deep below the surface of the life of Britain, and this rich seam outcrops again in the North American Continent, and has there been worked and assayed and refined and applied by diligent and skillful toilers in nearly every province of Canada and nearly every state of the union, for the progress and development of mankind. It has overcome distance and withstood the assaults of time.

I do not forget that in the early days of the American Republic there was a movement to repudiate the Common Law on the ground that it came from England. It would be as reasonable for Americans to repudiate the game of golf because it comes from Scotland; instead of which, the authors of your independence lost no time in making a tee-shot into Boston harbor, and naming one of your early battlefields Bunker Hill. And, indeed, the Common Law, as you and I understand it, is not some British institution which has been imposed or foisted upon Americans. It is the common possession of both countries, which has been preserved and developed by the energies and the intelligence of each; and certainly no nation owes more to its lawyers than does this great republic. When the French Revolutionists killed the famous scientist Lavoisier they shouted “ The Republic has no need of chemists,” but the founders of the American Republic made no such mistake about lawyers. Of the 56 signatories to your Declaration of Independence no less than 25 were lawyers; while of the 55 members of the Federal Constitutional Convention 31 were lawyers. It will be true, I think, to say that in these great acts of constructive statesmanship, lawyers played as large a part in America in the Eighteenth Century as they had done in England in the Seventeenth. And

« 이전계속 »