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A very heavy responsibility therefore rests upon those who have the editing of such a book. Much is heard about "judge-made law :” but the gentlemen to whom the publishers of any great standard text-book may happen to entrust the care of a new edition are no less surely “makers of law."
In the case of Archbold this is more than usually true: and for this reason, criminal law is administered for the most part in the country. It is administered by many persons who do not even pretend to call themselves lawyers. It is administered far from libraries; and by many who never read the Old Bailey trials, or read them only casually. In such cases what the book says
is conclusive. It is only the minority of prisoners who are defended; and there is no appeal. The two methods which do exist of setting mistakes right are the Writ of Error and the Case stated for the consideration of the Court for Crown Cases Reserved. Now, it is obvious that in the case of undefended prisoners neither of these methods is of any practical importance, in an instance where the judge does not himself doubt the correctness of his decision.
If Archbold is clearly in favour of his decision, it is probable that it will never occur to him to doubt it. If Archbold has made a slip (and we shall show presently that the thing is possible), or has inadequately recorded the effect of a particular decision, or has omitted a reference to a relevant statute, a wrong decision, whenever the point may arise, will be the most probable result.
Great power is therefore given into the hands of the editors. And it is almost inevitable that it should be so. There are about six thousand cases cited in Archbold, and there is also an enormous number of extracts from statutes. And there are many points in the criminal law which depend on no statute or decided case at all. The Pleas of the Crown of Hawkins, and Hale, and East; the Discourses on Crown Law of Sir Michael Foster; Bacon's Abridgment, and Coke's Institutes, must all be consulted from time to time in order to reach the principles of the Criminal Law.
It is impossible to have all these volumes at hand on circuit, and à fortiori impossible at Quarter or Petty Sessions. It is impracticable to adjourn each case where a doubt arises until time can be found to consult the original authority. Without the labours of the writers of text-books, justice according to law could never be obtained in every town and village of the country as approximately as is the case to-day. For justice according to Archbold is upon the whole a very near approximation to justice according to law.
Of course it is the duty of counsel, when they have the opportunity, to probe the matter deeper. It is not enough to consult Archbold
when the brief has been received in London several days before the trial. In such a case, if there is the least doubt on any point, the authorities referred to in the book ought to be carefully read and scrutinized, and Russell on Crimes, or Mews' Criminal Digest, explored on the chance of finding others.
But it is well known, if not to the general public, at least to the professional circle who are concerned with the matter, that briefs are not given in London, and not served days or even hours before; and the story is told of a late learned leader, who used when a junior at Sessions to open his case thus: “Gentlemen of the Jury. These depositions have only just come into my hands. I know no more of the case than you do yourselves. But, with the leave of the Bench, we will now proceed to investigate it together !”
The practice of briefing counsel at the last moment is, in all cases where it can be avoided, most reprehensible ; but in the case of large criminal Sessions we suppose that it cannot be helped. But how is it possible for counsel in such a case to consult original authorities or to verify the accuracy of his Archbold? He can only do what thousands of advocates have done before him : bow down before the authority of this book, and take the law and the practice alike from it. In what better position is the judge? If he knows the law or the practice on the particular point already, there is of course no difficulty; but if not, he is forced to submit to the same despotic influence.
How, then, does the system work? What is "justice according to Archbold ?" It has given satisfaction for seventy-eight years? Will it give satisfaction still?
We think that upon the whole it will. It was full time for the appearance of the new edition. In any case the seven years which have elapsed since the appearance of the last edition was a long while for those who knew no law but Archbold to remain in ignorance of the alterations in the law. But, moreover, during these particular seven years, one event has occurred—the passing of the Criminal Evidence Act—which has revolutionized the whole procedure of criminal justice. Accused persons had never been examined on oath before, except in certain specified cases, since the days of the Star Chamber. Whole pages, therefore, of the old Archbold became waste paper since the new statute received the Royal Assent.
The present editors have filled their place with most useful pages on the present practice. The Criminal Evidence Act, 1898, was obscure in many particulars. There was a number of prior Acts which it did not expressly repeal, but which by implication could no longer stand. Many questions have arisen in consequence ; and some important decisions have been given. The result is shown
on pages 365 and following of the new edition of Archbold; and the result so given will thereby become “the practice.”
There have been several decisions at nisi prius on what is meant by “involving imputations on the character of the prosecutor or his witnesses." These cases, and the books in which they will be found, are carefully noted.
Perhaps the most serious responsibility of all rests upon an editor of a text-book when he deals with "Judgments and Punishments."
“What can I give him ?” is a question which the Court frequently answers once more by reference to this book. A mistake in this matter would be the most serious mistake of all. But we can find
The Prison Act of 1898 (Statute 61 & 62 Vict. C. 41) is one which it is most important for all tribunals to know and appreciate. To make the punishment not only “fit the crime,” but to “fit the criminal too,” the Court must know the extreme limits of its power and every gradation within those limits. By section 6, sub-section 1, of the new Act “prisoners convicted of offences either on indictment or otherwise, and not sentenced to penal servitude or hard labour, shall be divided into three divisions,” and by section 2, “If no direction is given by the Court the offender shall, subject to the provisions of this section, be treated as a prisoner of the third division.” The new Archbold gives these sections and references to the Local Prison Rules, 1899, in whose light their importance will be appreciated.
The work done by the new editors must have been extremely laborious, and upon the whole it is well done : but it is not perfect. For instance, one of the most important cases which has been decided by the Court for the consideration of Crown Cases Reserved since the last edition is Reg. v. Lillyman (1896] 2 Q. B. 167, as to evidence of complaints in cases of rape.
Now, on page 292 of the new edition we read“and upon the same principle, the declarations of a person robbed, or a woman ravished, as to the facts made immediately afterwards, are evidence not of the facts complained of, but of the consistency of the conduct of the complainant with his testimony at the trial, though the particulars of their statement cannot be inquired into. See Rig: v. Lillyman (1896), 1 Q. B. 167, 65 L.J. M.C. 13."
The editors have made a slip here, as they have quoted the wrong volume. It should be (1896] 2 Q. B. But that is not the important matter. The Court really decided that in a case of rape the particulars of the complaint can be inquired into: and that is the whole point of the decision. See per Sir Henry Hawkins, at p. 179.
There is danger that this may lead to the exclusion of admissible evidence on some occasion.
It is fair, however, to point out that on page 867 the editors have stated the law and the reference correctly ; but they there refer back to page 287, which page when consulted throws no light upon the matter, page 292 having evidently been meant.
Now, this slip is important, as illustrating the serious influence which one book may exercise. Hundreds of persons will read page 292 of Archbold for one that reads the full report of Reg. v. Lillyman. Then it is not unlikely that justice according to law may some day be superseded by a quite different “justice according to Archbold.” And of course there may be other instances : for when we have once seen the good Homer nod, we are inclined to suspect his general infallibility.
Such a book ought, therefore, to be checked in every possible way. We do not believe that the editors would be otherwise than grateful if any inaccuracy can be pointed out to them : for they may remedy it in another edition. Every person who discovers a mistake in such a book renders a public service in the administration of the criminal law of the land. There are other books taken on circuit besides Archbold—such as Roscoe's Criminal Evidence, and the works of the late Sir James Fitzjames Stephen. One should be checked with the other. There are always many of the unemployed bar sitting in Court at the Assizes, and whenever a statement of the law is read from one of the standard text-books, which is in any way open to doubt, it would be a useful exercise for the wits of these compulsorily idle ones to check the statement by comparing the corresponding pages of one of the rival books. But even this method is not absolutely sure of success : for the mistake of two books will often be found to have a common origin.
“Melius est petere fontes quam sectari rivulos;” but that is no reason against making every possible effort for the purification of the streams.
Thirty-second Edition. Stone's Justices Manual. By GEORGE B. KENNETT, London : Shaw & Sons. 1900.
Fifth Edition. The Magistrates' Annual Practice, 1900. By CHARLES MILNER ATKINSON, M.A., LL.M. London: Stevens & Sons, Limited
Seventh Edition. The Justice's Note-Book. By HENRY WARBURTON and LEONARD W. KIRSHAM, B.A. London : Stevens & Sons, Limited.
1900. Every year some new addition is made to the duties and responsibilities of Magistrates, and they are given more and often new work
to do, both judicial and administrative. It would be impossible for them, even with the assistance of their, as a rule very competent, clerks, to get through their labours with credit to themselves and advantage to the public, without some really good book to refer to. Of these luckily there is no lack, and in their different ways each of the three works before us are likely to be of great use. The Justice's Note-book does not pretend to be more than its title signifies, and is written in a much more lively and popular style, than the other two treatises, but gives a short and clear account of the great majority of questions that are likely to arise. It is very portable, is arranged in alphabetical order and has a good index, but does not contain tables of the cases and statutes cited. Mr. Atkinson's work is much more complete, and there is very little that is likely to arise before a Justice of the Peace on which he will not find accurate and sufficient information therein. The book has been kept a convenient size, and is at the same time in good clear type. This has been attained by judicious compression, and by not dealing in any detail with certain lengthy subjects, such as the Merchant Shipping Acts, and the Factory Acts. A few subjects we note have been omitted, such as Blasphemy and Offences by Companies, and we think the case of R. v. Shipley, P.C., ought to have been cited under Highway. The subject of Betting has been very carefully considered in the light of Powell v. Kempton Park Racecourse Co., and if the present state of the law is not quite clear, it is not the fault of Mr. Atkinson.
Stone's Justices' Manual is an exhaustive work, and whenever we open it we are filled with admiration for the immense labour, care, and ability that have been expended on it. It contains apparently information on every point that is covered either by Legislation, Judicial Decisions, or Practice, and must be simply invaluable. We do not think that the opinion expressed that the husband or wife who is a competent witness under the Criminal Evidence Act is not also compellable, is correct, and prefer Mr. Atkinson's opinion. In spite of the case of R. v. Brasil, the practice has been the other way, but it has not been authoritatively decided.
Thirty-seventh Edition. Every Man's Own Lawyer. London: Crosby Lockwood & Son. 1900.
. This well-known and popular work has been revised and brought up to date, and now includes the most recent legislation and cases. It is wonderfully accurate for its great compass, but stipendiary magistrates are appointed by the Home Secretary, not by the Lord Chancellor, and the important provisions of the Summary Jurisdiction