G
KONG DAILY PRESS, WEDNESDAY, APRIL 3, 1935
Law In Society FAREWELL CALL RABIES DANGER
The Function Of Law
INTERESTING ADDRESS
BY CHIEF JUSTICE
"
FINAL MEETING OF ENGLISH ASSOCIATION
At the sixth and fual meeting of the Hong Kong Branch of the English Association held at Helena May Institute yester day, His Honour the Chief Justice, Mr.” ADA, MacGregor de livered an interesting and instructive address on "The Function of Law in Society" to a large "and distinguished audience over which His Excellency the Governor, Sir William Feel. KCMG.. K.B.E, presided.
In the course of his address. Mr. MacGregor traced the prɔ- gress of law from its early stages to the present and dealt with the system used by the witch doctors in Africa as well as the trial by ardeal in England in the old days, and the present sys- tem of trial by Jury,
"
At the conclusion of the meeting. Sir Thomas Southern paid a tribute to His Excellency Sir William Peel and thanked him for having been President of the Association. Sir Thomas also wished His Excellency and" Lady Peel a very happy time in their retirement.
Mr. MacGregor's address was as follows:--
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spired, now fraudulent, at one time reaching towards the divine, at another descending to the de- vilish. It cannot have taken lang therefore for the community to feet
On His Excellency
The Governor
The high esteem in which-His
Excellency the Governor, Sir Wil liam Peel, KCMG, KRE is heid both in the Colony and in Canton, was again shown yesterday when a number of officials of the Can- deton Government arrived here and paid respect to His Excellency at the Hong Kong Hotel yesterday morning on the occasion of his forthcoming departure for Home at the termination of his term of once.
840 uneasy suspicion that these authorities were perhaps not infallible. In fact it must soon have been obvious that under such a system no one was safe except the witch doctor himself, for to his divination there was 210 fence, from his decision there was no appeal, and be knew but are punishment which was summary and final. When we came to this stage of progress the analogy to a judicial trial is complete, at least insofar as there is now not merely a prosecution but a defence well That defence takes the form of an appeal to an approved orden, as obviously it must for ss a breach of law or custom is ¦ still an offence against the un- ceen powers, a person accused of “such an offence
his Innocepice only by inducing those powers to reject him as a victim. This system in its entirety Bourish- ec in one district in West Africa in which I served, and for dught I know still flourishes.
can prove
Magistrate Issues
Warning
Mr. E. 1. Wynne-Jones made ani important statement at the Kow- loon Magistracy yesterday in the nature of a warning to the public to take greater care in looking after their dogs. »
The Magistrate said: "I hope that everybody will take warning from the terrible tragedy that happened over the last week-end- and exercise still greater care in looking after thelf dogs.
"I see from my list here that we His Excellency was accompanied have 24 summonses at present for
without as by Captain Walter, A.D.C. and the dogs
These muzzles Canton party was comprised of offences probably occurred withiri Mr. Idm Yun Koy, Chairman of the last three weeks. On the face the Kwangtung Provincial Govern- of that it is not very bad, but ment, Mr. Liu Chi Wen, Mayor of with the certainty that rables does Canton, Mr. Li Luk Chiu, & mem-exist here in Kowloon at the ber of the Provincial Council, ana moment we must cut that down. Mr. Wu Pak Shing, a member of "I don't propose to increase the the Municipal Council
fine at the moment, but unless The visitors were met on their there is greater care shown in arrival at the Kowloon Station by this, I shall have to.
The maximum fine is 1250, and the Hon. Mr. N. L. Smith (Secre tary for Chinese Affairs). Mr. H.I am quite prepared to go the Phillips (the British Consul-rait if I and people are being General of Canton), Captain R. F. careless, although I don't propose Walter (His Excellency the doing anything about it at the Governor's A.D.C.), the Hon. Dr. moment. This is merely a wam- R. H. Kotewall, the Bon. Dr. S. Wing Tso and the Hon. Mr T. N. Chau.
not straight but twisted-as description of an actionable wrong.
With the further destruction of another six mules of the Hong Hoar Mule Corps the total has now been brought to eight. All the animals showed signs of rabies. Two were destroyed on Friday and the rest on Sunday and Monday.
An Indian Sepoy who was bitten" by one of the mules, is now under- going precautionary treatment.
A
T
they manifestly can only be. the
TRIAL BY ORDEAL symptoms of the anger of the With this adyance in procedure I see from the Rules of this
great unseen powers, those del civilization seems to have ten branch of the English Association and forces of nature the exist-content for many centuries. and that membership is open to all ence of which was recognised within England in Anglo-Saxon and Shortly after their arrival, Mr. persons interested in the English the earliest awakening of human Norman times ordeal by compur-Lam Yu Koy and Mr. Liu Chi language and English literature. thought. Man's first impulse is to
gation or by battle was there Wen called at Government House If that Rule is to be construed endeavour to control and compel, cognised method of trial, 2 and they were guests at luncheon narrowly as an indication toat or to coax and appease these Lateran Council in 1215 strictly of Major-General O. C. Borrett. speakers at your monthly meet these offended powers, but the condemned the practice and it a Last night they dined at Govern ings should select a subject close method, essentially empirical, is pears to have fallen into comparament House as guests to His Ex- ly associated with the growth or
sheer anthropomorphismative desuetude, though it is in cellency. the proper use of the King's Eng- made God in his own image...
teresting to note that as late as lish, or dealing with the life, the SACRIFICE NECESSARY the nineteenth century the right character or the works of some of There is in the earliest stage no of defence by ordeal was invoked. the great names in English litera- sense of personal responsibility L 1818 in the Afty-eighth year of ture, then I fear that to-day I nor is the idea of punishment for the reign of George III in the am shamelessly abusing your hos- wrong-doing traceable in the ear-King's Bench William Ashford was pitality. I prefer however to put liest stages of humanity. To pla- charged with murder. When call- a wide interpretation on the Rule, cate the offended deltles sacrifice ed upon to plead he pleaded "not confident as I am that your mem | is recessary but the sacrifice is gulity: and I am ready to defend bers take all learning for their not that of the guilty but rather the same by my body" and there- province. It is a poor compliment that of the obviously guiltless, the upon taking his glove off he threw to any audierice, and particular-youngest or the purest, that which it upon the floor of the court. ly to such an audience as this, is untainted by the world and After a very lengthy argument to choose a subject of which one without spot or blemish. As ex- Lord Ellenborough C. J. delivered has no claim to special knowledge.perience widens however, and ob- the following judgment. "The Though my knowledge of the par- servation seems to correlate causes general law of the land is in fay- ticular subject on which I am to with results the earliest legal sys- our of the wager of battle, and it speak this evening is far from tem, appears. Its interest Ues in is our duty to pronounce the law profound it is at easy deeper the fact that it is the first re- as it is, and not as we may wish than my special knowledge of any | cognition of the principle of per-it to be. Whatever prejudices purely literary subject, I hope sonal responsibility, Though it is, therefore may justly exist against also that short essay.
an still expedient that the one should this mode of trial, still as it is the aspect of sociology about
which, suffer for the many the victim law of the land, the Court mus
selected is now the person who, pronounce judgment for it." however unwittingly. has done that which experience seems to indicate should not be doce. The gods require a sacrifice, but why should any one suffer except the one who has by his wrong-doing legal procedure incurred the wrath of the gods Bnitely traceable to the system of and so caused injury to the whole ordeal, the oath and trial by jury The idea underlying the adminis community? When we reach this
110
so far as I am aware, no one has yet written, may not be entirely without interest.
MADE TO BE BROKEN.. The title which I Have selected is "The Function of Law in So- clety". We lawyers, perhaps with the acquisitiveness to which, as a profersion, we are reputed to be so prone, have to a considerable
TRIAL BY JURY
Since that day trial by ordeal has ceased to exist in England. there still remain two aspects of
but
which are de-
LEGISLATIVE . COUNCIL
Business For To-morrow's Meeting
Է։
At a meeting of the Legislative Council to be held to-morrow after- noon at 2.30 pm, the following business will come up for discus- slon:-
LAW AND ITS FUNCTIONS By these progressive steps we come to what we all understand by a system of law and legal pro- "cedure. What part does it play: in the modern state and what function is it called upon to dis- charge? Before I attempt to an- swer that question, having in mind conditions in our own country. with which we are particularly The Colonial Secretary will move concerned, it may help to realise That the Report of the Finance one further great though almost Committee (No. 6), dated 28th imperceptible change which tookMarch, 1935, be adopted. place as late as the Victorian era. The First reading of "A Bil to Until that time law had remain-amend the Stamp Ordinance, 1921” ed predominantly coercive and will be moved by the Attorney negative. Personal responsibility
General, while the Director of had long been recognised, and in- Public Works will move the First sisted on, but the correlative of
reading of "A Bill to amend and consolidate the law relating to the construction of Buildings."..
personal rights and privaleges had
been granted only slowly and rudgingly. Through centuries of comparative enlightenment the Individual still suffered becaule,
extent arrogated the use of the stage of development we and thetration of an oath is obvious: The to live according to the station to and experience, they are the
";
system
of
the
moral with
a.
to a regime of status as opposed in our racial character, they have as Maine puts it, he was subject pression of all that is fundamentai
to one of contract. His duty was been tested and proved by time
which he was born, not to go forth epitome of our normal nalichal station would best accord with his gravest crises and emergencies does experimentally to seek whateve: self-expression. Only in the
opportunities And world was still static. The indi- rule of law, does civil law yield merits. The the rule of force supersede the vidual found his part ready writ place to martial law. ten for him, and his business was but to render it correctly and not affairs the law conformed strict to:"gag?" To this condition of
Y. and its slogan still was Thou shalt not.
..
And
The con-
quantitative effect of the word "law to ourselves, forgetting first Indication of a "that etymologically law is that trial. In many cases it is obvious sanction is in direct ratio
the qualitative because the social which is fixed or laid. What a who is the offender and for him
тоге He rule is infinitely unnecessary. "poor thing is the law of the lawyer trial is clearly
binding when the tremendous import of when compared with the majes- has done wrong and must suffer
the divine is super-added. Savage tic unescapable laws of the uni- the penalty, and punishment must
faith, or, If you prefer it. primi
verse, is equally true. The doctrine verse. To the sclentat, the mathe-be swift and condign lest
tive credulity, is strong, so that offended powers observe the sin
·matician, the astronomer, vor the
of the "reasonable man" at which theologian a law is that which before they are appeased by the an oath is no vain form but sufi- ces to turn a human trial into
Mr. A. P. Herbert in his "Mislead- sacrifice.
so much fun has been poked by admits of no exception. There is
what our Middle Ages called no such thing as the breaking of SYSTEM OF DIVINATION
"Judgment of God" A secular
ing Cases" is eminently sane and a law. If an instance is found of
In many other cases however no
law may always be dodged, but
sound. No state can prosper with- non-conformity with what has one in the community iş aware
A BETTER WORLD
out orderliness, and so long as till then been regarded £5 1 that at a taboo has been violat there is no dodging a conviction
of sin, Whether the truth-com- Imperceptibly the change came England can continue to call con- law the scientist will not ad- ed until punishment falls on the pelling force of the oath is to-day about until at last the world was fidently on the services of eminent mit an exception to the law, tribe. What then is to be doce?
as great as it once was, and stil dynamic" That "salutory" change Judges who are essentially men of A
wrong. deduction has been The offender must be found, and drawn from insuficient data, and speedily lest worse" befall the com- which I need not touch today.
ought to be, is a moot point on permeated every part of the body the world, and who will devote politic, and for more than a cen- their energies to applying the there is therefore no such law, munity. Here we have all the in-
As to trial by jury which ori- tury, now it can be truly said of great principle. of sanity to the To those of us who think primar- gredients of detection and prose- ily of law in its legal sense con- pution for in such a primitive level inated directly from the system the law that "Thou shalt has needs of a world which is in a of ordeal, I have sometimes had taken the place of "Thou shalt state of fux so much the longer ditions are very different; in fact of civilization law is essentially grave doubts whether, even in not side by side with the duties will orderliness prevail over the cynic might well say that coercive. Thus there arose the many laws exist only to be brok- system of divination, an interest these enlightened days, it differs and responsibilities zo rights and hysteria
Anarchy. That, greatly from ordeal by lot.
privileges, and the law throughout ladies and gentlemen, is the en, and that the legal profession ing survival of which is still to lives on the breach of that which be found in the witchdoctors, the
IDEA OF ORDERLINESS"
has played its part in making a function of Law in society. (Ap in its engence should be gabrear- lalbank and ngami of Africa. Even Gradually as civilization con tiles for all
better world with equal opportun-plause).
* THE DISCUSSION able.
in such a primitive society as we tinues to advance law tends more TWO CONCEPTS
In our own times such changes are now considering some people and more to stress the idea of or-
Fils Excellency then declared the But even in the law in the sense must exercize authority over the derliness. Even in the mythology-have come about with almost be meeting open to discussion, and with which I am to-day concern- rest. Some there will be who cal stage of human thought the wildering rapidity. We have seen while they had been ed there are from a very
cosmic orderliness is a world stricken by war and well enough to have the oppor early are looked up to because they notion of stage in human thought two con- have made
themselves conspic-discernible. Nemesis, for instance, nigh ruled by peace. Everywhere of listening to such a bril repis apparent which it shares uons for bravery or whatever was the 'godness who checked and unrest and dietisfaction with Destion of what was und with the principles which guide other virtue is generally admired, controlled the wild things in no- the established order of things is a very dimcult subject, and control natural phenomena, but it is not to them that society ture. Children, the primitives of apparent. It is to the law that that the speaker had, taken These are inevitability and order- turns in time of crisis, for their to-day, recognise and understand one is entitled to look in such ther more optimistic liness. In the earliest sentient strength lies in dealing with the orderliness, as may be seen from circumstances for stability and enlightenment of common law, He stages of humanity, as reason re- normal. There must be a second their appreciation of the orderly orderliness and nobly, I think, has had always found a ertible placed instinct, and the will to class whose preeminence rests on movement of the animuis into the the law discharged that duty. Onck between the progress of so- power gradually superseded the a claim to supernatural powers. In ark or the measured regularity of the dry bones of the great system clety and the prources of law will to live as the predominantly such a society a man's holiness is the disappearance of the ten little of the common law, evolved in such There was el present à Committe powerful social motive law is no proportionate, to his remotenes nigger boys. The importance of very different
law reforms at Home more than a series of taboos or He must reserve himself for criti- this aspect of law is seen too in long line
ber of changes were now under prohibitions. That is only na cal occasions if he is to latervene the choice made by other coun- judg
One big change which tural for the wildness and rough convincingly when nothing but a tries of words to describe what we puls
loubt would come about play of natural forces lle on the miracle will save the situation, call law for instance the French
was the great surface of things, and so impress William James in his "Varieties "droit administratif or the even the most primitive mind. of Religious Experience has at lan "diritto publico.”. In our The lightning strikes the tree, tempted to analyse the state of Innguage the same idea is pro tempest and pestilence, famine mind of the civilised vision- ent in such every da and flood anilet the community ury, but neither Christian Saint as an upright which knows not the way or the nor Hebrew prophet can compare conduct and square wherefore but feels instinctive with the savage seer in respect to very common ph ly a vague, wonder and be the obscurity of his thought-pro- order, clearly wilderment," "Such calamities, are } celnes. From the standpalat of of He fun definitely anterncial, but how can common-sense they are decidedly, terestin they be arrested and"" if possible suspect, fluctuating wlidly as they | Joes f averted for the future? They are, must, so that how they seem in the wor
has mo
them, for the
that
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