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The Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India online

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Vol. Ill] The Criminal Law Jouunal. 155

witnesses appear to consider that so long as their statement is true in one
sense they can keep within the law and deliberately mislead the Court
for the purpose of procuring a miscarriage of justice. They have a "legal"
conseieoce such as Freeman, the historian, ascribed to Henry VIII. because
that monarch always wished his murders to be done by act of parliament.
But, dull as such consciences must be, the oath often has still some hold
upon them, if properly administered.

One of the reasons why the oath is losing its moral eflScacy is because
I it is often administered without any reverent sense of the presence of a

Supreme, All-Ruling Deity and without any appreciation of the signifi-
cance of the ceremony and the responsibility of the witness hereafter for
I what he is about to say. Inasmuch as the words of the oath are not well

I adapted to impress its obligation, it is most important that the ceremony

attached to the administration of it should recognize the solemn character
and obligations of the oath. The careless and flippant manner in which
the oath is sometimes administered has a tendency to diminish its effect
i upon the dull conscience of an ignorant, indifferent or unscrupulous |>erson.

An official in administering the oath is sometimes heard to mumble some*
thing like this, —

"Thevidenshu .... shulgivthecourt — shulbethetruth . , .
• tholetruth — annuthinbutthetruth — ^takyergluvoff — shelpugod — Kiss the

If a visitor from another planet were preseiit on such an occasion,
and were informed that this mystic performance was intended to put the
witness in a frame of mind calculated to speak only the truth, and to call
his attention to the existence and presence of a God who will punish all
false swearing, the visitor would feel that this ceremony was not well con-
trived to accomplish such a solemn purpose and would be almost as im-

I pressivc if, instead, the official had made a casual comment on the

I weather.

I This criticism, liowover, is jiot of geneml application. An eminent

authority on evidence (Wigmore, s. 1827); says : '* The class of persons
"^^hose lielief makes tliem capable of being influenced by the prospect im-
phed in an oath is decidedly the immense ma»s of the community. Fur-
thermore in practice these are persons apparently, for the most part, actully
influenced for the better in their mental operations on the witness stand,
"y the imposition of the oath, and where experience looks to the contrary
•the result has been due to the deplorable irreverejice and trivality shown
.in the administration of the formality rather than in the i? lerent inefficacy
'Of the oath itself.'^

There is another reason which may account in part for the fact that
•tho-oath is losing its moral efticiicy and as a consetjuence that perjury is

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156 Tub Criminal Law Journal. [Vol. Ill

increasing. The fuudameutttl idea of the judicial oath was to call to the
mind of the witness the existence of an Omniscient and Snpreme Being,
who in the words of one of the old judgments is — " the Re warder of Troth
and the Avenger of Falsehood." But the existence of a Supreme Being
who wilt a^^enge blsehood is denied by increasing numbers on this con-
tinent, and the sacred volume itself (the kissing of which, according to
Gladstone, was originally an import of the acceptance of tlie Divine Bevc-
lation) is now the subject of persistent and most demoralizing criticism.

There is, we tear, too much truth in the statement that ciWlisation
without religion is not raising the moral tone of the community ; rather
must it be said that the tendency is downward.

Parliament can neither make men moral nor can it implant the fear
of eternal punishment in the hearts of individuals or restore the moral
efficacy of the oath, but it can do something to restore the fear of temporal
punishment, by legislation which will make that punishment swift and
certain whenever perjury is committed. — C. L. J.

W. B. Wallace.

By Elmer E. Rogers.

The martyrs of former time sought to have monuments erected by
civilization to their memory. Without education, except that begun and
finished in rural life, and without books, the noted criminals of the world,
indeed, deserve consideration. The arch criminal of the age at his trial
saw testimony admitted, and that without objection, which now is in-
competent, immaterial, irrelevant and irreverent, though a part of the
res pester. Such conduct is calculated to give heart disease to the present
day practitioner — or to his defendant client. In the phraseology of the
lawyer the situation was phenomenal and without precedent ; but it is
the true version. On convening of court by the self-constituted bailiff,
considerable confusion seemed to be in the court room, and the judge
grew much perplexed to distinguish between defendant and principal
witness, and accessory ; then it looked as though the crime had been com-
mitted before defendants had an understanding of the law, or at least
before the law was codified or the first book on criminal law had been
printed and published. And in one case the law may have been ex jyost
facto. But ignorance of what the law ought to be is no defence.

The defendant and his accessor)- before the act were caught red-hand*
ed, and by enforced agreement tried at an enrly date, convicted, and
sentenced — railroaded to tlie penitentiary. The court appointed no law-
yer to represent the interests of the defendants because then there were
no law offices and so no attorneys. No chance was given to defendants to

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Vol. Ill] The Criminal Law Journal. 157

prove an alibi, for a new trial, arrest of judgment, appeal to courts of last
resort, sue out writ of error, halteas corpus and so on.

Besides, little was done afterwards to guard against the commission
of similar crimes by others. The reform organizations seem not to have
gotten into working order.

Degeneracy ran in the family of these criminals, for subsequently
the eldest son slew his brother with malice aforethought and moreover
with no provocation whatsoever, excepting chagrin and envy because tbe
brother had been more successful in business than himself, so the rumour

The murderer was arrested. Then came on the first remarkable
homicide trial of the kind. The verdict of the jury in my belief was fair
and the sentence just, just such as the criminologists ought to study. The
condemned was not put to death on the gallows nor by electrocution. A
peculiar feature of the sentence was the ostracizing of the murderer ; and
lest relatives or friends of the victim take vengeance in their own hands
to murder the murderer, the court enjoined any such precipitate action
by promulgating th^t any such assassin should be put to death in the
most barbarous manner.

Here was a case of a black sheep in a blacker family — a veritable
bottomless pit of depravity and corruption — politically, industrially, and
socially outrivalling that of New York, Chicago, London, Paris, Berlin,
and Pekin combined, relatively to population.

The parent regretted that his son was the very image of himself. I
presume he wished he had patterned after some one else. Probably there
is a little devil in us all, and with bad blood, it very likely will cut a bad
figure in our genealogy.

At the time of these memorable trials the railroad, telegraph, tele*
phone, newspaper, lawyer, gossiper were unknown. Nothing existed to
point the finger of scorn, create sympathy, or get anything wrongly re-
ported. The court was, in itself, exercising the functions of judge, state's,
or prosecuting attorney, witness, sheriff, and clerk ; and no grand jury
to complain. Truly the scene is without precedent.

The accessory before the fact received the sentence to keep out of
flying-machines, to lie low, and without use of either his hands or legs to
diet on mud.

People have no license to commit even the crime of trespass by vault-
ing a partition picket fence to steal fruit ; that was infraction of criminal
laws. Here came the man's eternal doom, but not for murder. The arch
convict remained in prison during his natural life, 9.30 years, only 39
years less than the lifetime of the oldest man that ever lived, Methuselah,

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158 The (!riminal Law Journal. [VoLIII

thns shattering all our theories of longevity that it proceeds from a pure
and blameless life. Imprisonment seems to have lengthened the indivi-
dual's life in this case instead of abridging it ; most of us out of the peni-
tentiary meet perplexing situations in attempting to keep life within our
l)odies for the 70 years.

But the condemned prisoners never murmured at their forlorn state ;
didn't rail at the court nor the proceedings (Avriting was an undiscovered
art) ; nor that the jury were prejudiced against them, or returned an
unfair verdict, but cheerfully did they accept their outcast state. The
greatest punishment is imprisonment with one's own conscience. — G. B.


The vei^y important method ot identifying blood stains, devised by
Uhlenhuth several years ago, has recently been further perfected by its
discoverer, and can now be depended upon to distinguish between the
blood of man and any other animal, even monkeys.

it thus becomes an extremely potent weapon in the hands of the pro^
secuting attorney, and will no doubt hereafter play a leading part in man v
murder trials. . . l

Probably there is no medico-legal rock on which more criminal pro-
secutions have been wrecked than the unidentified and unidentifiable
bloodstains. Until very recent years it was not even possible to distin-
guish between the bloods of such widely separated animals as the horse
and the chicken. If a person suspected of murder and caught literally
red-handed accounted for his blood-bespattered condition by the statement
that he had recently cut off a chicken's head or killed a cat, there was no-
way of disproving his statement, and thus what might have been the
strongest kind of circumstantial evidence was rendered practicallv value-
less. •

In February, .1901, J)r. Uhlenhuth, of the Hygienic Institute of
Ciriefswald, published an account of a new method by which he coiild'
distinguish l)etvveen human blood and that of other animals. He was
obliged to qualify his announcement, however, by the statement that the
test could not bo depended upon when the stain might have been made by
ape's blood, as this was so nearly like human blood as to give an almost
identical re-action. Despite this defect, the method was immediately used
in medico-legal cases, and became a regular part of the prosecutor's arma-

The original test was based on the fact that by inoculating a rabbit^
several times with human blood a serum can finallv be obtained from the-

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Vol. Ill] The Criminal Law Jocrnal. 159

rabbit's blood which will ronder clondy a mixture of wator and human
Mood, but will not affect a solution o£ any other blood but that of the ape.
Hence, all that is necessary in the case of a doubtful blood stain is to
dissolve it in water and place a few drops in some of the previously pre-
pared rabbit serum.

Now Prof. Uhlenhuth announces that he has prepared a serum in the
ape by inoculating this animal with human blood which becomes cloudy
when mixed with human blood, but shows no trace of cloudiness if treated
with ape's blood.

He further states his belief that there may l)e differences between
the blood of the various races of mankind, presumably of sufficient amount
to enable a diagnosis to be made between them.

If this should prove true the physiological chemist will not only be
able to tell the jury whether a given blood stain consists of human blood,
but also whether it came from a white man, a negro, or an Indian. Science
could not go much further than this without being accused of sacrilegious
compact with the devil. — X. Y. G.


A long step was made towards the possibility of enforcing the laws
against corporations which have practically defied them when the United
States Supreme Court, in its recent decisions, made it impossible for officers
of a corporation to refuse to give testimony before a grand jury because it
might incriminate the corporation. In the case of Hale r. Henkel, Adv.
S. U. S. 11)05, p. 370, 2C Sup. Ct. Rep. 370, and in the accompanying
cases, the court most explicitly held that the privilege against self-incrimi-
nation, afforded by the 5th Amendment to the Federal (Constitution, is
purely personal to the witness, and that he cannot claim the privilege of
another person, or of a corporation of which he is an officer or employee.
It also held that the constitutional protection against searches and seizures
could not, ordinarily at least, justify an oflScer of a corporation in refusing
to produce its books and papers in ol)edience to a suhpoma duces tecum
Issued in aid of an investigation by a grand jury of alleged violations of
law by the corporation. The court also held, following Brown r. Walker,
161 U. S. 591, 40 L. ed. 819, 5 Inters. Com. Rep. 3G9, 16 Sup. (^t. Rep.
644, that statutory immunity of a witness from prosecution on account of
any matter concerning which he testifies under certain Federal statutes is
sufficient to satisfy the constitutional guarantee, though it may not afford
him immunity from prosecution on such matters in the state court. The
violations of the anti-trust law and other Federal laws which have attempt-
ed to regulate interstate commerce have for years been, in many instances,
not only well-known, but actually defended by the corporations on the

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rlOO TlIE CltDflNAL LaW JoURNAL. [Vol. Ill

igronnd of necessity. There has thus goi>e on a continued defiance of ^he
government by the corporations which were the creation of law, but which
had l)econie powerful enough to regard themselves as above the law. The
humiliating spectacle has done much to demoralize the public, and breed
a disrespect for law. A large part of the public seems to have accepted
the theory that it was useless to undertake to enforce law against powerful
corporations ; but the situation has changed rapidly in the past two or
three years. Prosecutions have not only been instituted, but have actually
been carried to success, against some of the greatest of the mammoth
aggregations of capital that were violating the Federal laws. It was
proved that what had been supposedly impossible could actually be accom-
plished. Yet the difficulties in the way of convicting a gigantic corpora-
tion are not easily measured. Every legal, if not every illegal means that
unlimited money can employ is used to defeat the proceeding. If, in such
a situatioii, the corporate officers, when called upon for testimony, could
make their personal privilege against incrimination broad enough to shield
the corporation itself , the task of enforcing the law against such companies
might, indeed, be hopeless. But the recent decisions of the Supremo
Court have made this impossible, and, in so doing, have done more than
any other single decision could probably do to teach the great corporations
that they are not greater than the government. — C. cj- C.

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Criminal Lau) Journal



No. 11 ] JUNE 16, 1906. [ VoL ni


By Charles Noble Gregory, Dean of the College of Law,
Iowa State University.

In his famoQS speech on the case of Wilkes, William Pitt, Earl of
Chatham, declared : " Where law ends there tyranny begins," and valu-
ing law accordingly, we must remember that our licensed profession
constitutes the teachers, expounders, interpreters, administrators and
creators of the law in every nation which possesses even the semblance
of freedom. To our cloth it owes its excellence and to our cloth will be
attributed its defect^.

The law lays hold of all men and all things. The more substantial
rights of persons and of property are defined and protected by it — life,
liberty, and the pursuit of happiness. In our level world, certainly in
our prairie state, no one can rise above its just control and no one can
sink below its benevolent protection. Yet said Hobbes, " They be farro
more in number that love to read of great armies, bloudy battles and many
thousands slain at once, than that minde the Art by which the affaires
both of armies and cities be conducted to their ends.*'

** The pleader's part is doubtless much harder than that of the preach-
er ; and yet, in my opinion, we see more passable lawyers than preachers,
at least in France." So said that great human writer, Michael de Mon-
taigne, uttering in medieval France a voice as modem as Plutarch's.
•Ad<lTef« delivered before the Iowa State Bar Ai»sociation,

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162 The Criminal Law Jouknal. [Vol. m

Oddly enough these two professions seem to l)e equally demanded in
the society o£ oar time and country, where neither is supported by the
state, since the last census o£ the United States shows that lawyers and
clergymen fare there almost the same in numbers, the lawyers exceeding
but by about 3,000.

The old idea was that the lawj-er was the parent of discord and con-
tention, "bonus jurista, mains christa," ran the Latin proverb, "A good
lawyer, a bad Christian." This was the common sentiment of kings, philo-
sophers and peasants. So Ferdinand, when sending colonies to the Indies,
"ordained that they should not carry with them any law students lest snit^
should get footing" in that new world." Plato in his "Republic" declared
"That lawyers and physicians are the pests of the country," and Sir
Thomas More would have no lawyers in his Utopia as "a sort of people
whose profession it is to disguise matters as well as to wrest kws." Peter
the Great, in London in 1698, was taken to Westminster Hall, and he
askd who were all those men in black gowns and wigs" whom he saw so
busy there. He was answered, "They are lawyers, sir." "Lawyers" sa.d
he much astonished, "I have but two in my whole dominion and I believe
I Jhall hang one of them the moment I get home." The rustic prayer,
"My body from the doctors, my pocket from the lawyers, my soul from
the devil," chimes in with the chorus of princes and pundits.

And yet this evil and decried profession has strangely thriven in
that "new world" in the great republic, in our western Utopia, hays Mr.
Brvce • "The bar has usually been very powerful in America, not only
fs beinc the only class of educated men who are at once men of affairs
and skiUed speakers, but also because there 1ms been no nobihty or
territorial aristocracy to overshadow it." " Politics ha^•e been largely m
J hands." "For the first sixty or seventy years of the republic the
ll^g statesmen were lawyers, and the lawyers, as a whole, moulded the
pnblic'opinion of the country."

And Do Tocqueville, more than half a century earlier, declared : "If
I were asked where I place the American aristocracy, I should reply
Xut hesitation that it is not composed of the rich J.^o are nmte
together by no common tie, but that it occupies the judical bench and

'"'' Said the late Chief Justice Ryan, of Wisconsin, echoing this senti-
„,ent with less of moderation : "The American aristocracy of intdlect is
men '^'}''/' American bar," and the late Lord Chief Justice of
t^rVje^oi the llrge and commanding influence which th«
legal profession has attained in these United States.

Far be it from me to agree with the indiscriminate exaltation of tM
service or the place of the bar, so largely from its own members. AU

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Vol. in] The Criminal Law Journal. 1C3

men are in danger observing with exaggerated appreciation the lalx>nrs and
achievements of their own order and of living in strange oblivion as to
what their neighbours of some other pursuit are accomplishing ; but the
groat participation of lawyers in public affairs in this republic cannot be
questioned. We are not subjects of King George the Third, but, as much
as any nation on earth, we have given credence to his famous old saying
that "Every man is good enough for any place he can get," and the law-
yers have been able to obtain more than one-half of the great offices of
the country from its foundation down to the present time, although even
yet only about one seven-hundredth of the population.

The lawyer in office is now, however, beginning to be oversliadowed
by the very rich class which is taking the place in some w^ays of the
"nobility or territorial aristocracy" whose absence Mr. Bryce remarke<l.
The lawyers are still elected to the great places, but the chairman of the
committee which manages the campaign and the heaviest subscriber to the
uncounted treasures of the campaign fund, are of the other class, and tend
to impair the former undisputed pre-eminence of the man of law with his
majorities. Richard of Warwick is greater than Henry of Lancaster or
Edward of York, the king-maker is greater than the king.

Said Sir Horace Davy, later Lord Davy, not long since, while he was
testifying before a royal commission : "Of course law is the mode of regu-
lating the social life of people, in the interest of the community," and
taking the law which lawyers study and expound in that broad sense, it is
easy to account for the important part they play in the public life of any
free country. It will not be found that they have any corresponding pre-
dominance ampng the more degraded peoples or under the more despotic
governments. "Where there has been freedom, there have been advocates,
even in the forests of old Germany," says M. Le Berquier, and he goes on
to point out that they are the result and corollary of the "right of defence,"
and that thus advocacy flqurished under the Ronian republic, but declined

under innumerable restraining ordinances in the time of the empire.

It is a mark of advancement when one who deems himself wronged
seeks redress before a tribunal of justice by the aid of a lawyer. The fact
that an important and well-recognized class of men is maintained in every
civilized country of the globe, trained and licensed to assert and defend
other men's rights with the persuasions of reason alone, is the highest
evidence of the progress of mankind. Cicero could say that all men
enjoyed their prosperity under the shelter of the soldier. That is much
less directly true now than then, since all private contention is settled
before the courts, and even in international differences the lawyer's, voice
is more and more heard and with ever-increasing potency, substituting
persuasion for the bloody brawls of war, and that too, where he comes to
assert no enacted law, but is armed only with words of rea«»on, saying only

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161 The Criminal Law Journal. [Vol. Ill

**This is right and that is wrong," and compelling justice by an appeal to
the common conscience and common sense of the world.

"That justice and its administration," to borrow the words of Lord
Chief Justice Russell, "are amongst the prime needs and business of life,"
is a fact recognized by the existence and position of the bar.

Turning to the history of the bar and of legal instruction in America,
we find in our colonial period but few lawyers, and those mostly of little
note, until the stirrings for liberty immediately before the Revolution.

While Mansfield was thundering against us and Camden for us at
Westminster, Patrick Henry, after six weeks of study, had been licensed
to practice, and had sprung into sudden fame by winning his famous
"Parson's case," against the hated clergy of the established church in
Virginia, and was gaining undying glory by his eloquent advocacy of the
rights of the people. In the same year in which Henry won his spurs
(1755) John Marshall, later Chief Justice, was born, but it was only after
his law studies had been broken by service in the army of the Revolution
that the greatest of our American bar was enrolled upon its records.

It is not easy to recall legal names of earlier date in this country.
Blackstone's Commentaries are said to have been found beside the Bible
in the house of many a layman. My honoured predecessor. Chancellor
Hammond, the learned editor of the Commentaries, says there is abundant
evidence that nearly 2,500 copies of them were distributed through the

Online LibraryKarl HeimThe Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India → online text (page 20 of 91)