realm, that no cruel and unusual punishments are to be inflicted (o). Some further remarks on those that have been mentioned, may here be material. As to fines, their quantum [neither can nor ought to be ascertained, by any invariable law. The value of money itself changes from a thousand causes; and at all events what is ruin to one man's fortune, may be matter of indifference to another's. Thus the law of the Twelve Tables at Rome fined every person, who struck another, five-andtwenty denarii: which, in the more opulent days of the empire, grew to be a punishment of so little consideration, that Aulus Gellius tells a story of one Lucius Neratius, who made it his diversion to give a blow to whomsoever he pleased, and then tender them the legal forfeiture. Our statute law has not, therefore, often ascertained the quantity of fines, nor the common law ever,-it directing such an offence to be punished "by fine" in general, without specifying the certain sum,-which is fully sufficient when we consider that, however unlimited the power of the court may seem, it is far from being wholly arbitrary, but its discretion is regulated by law.] For the Bill of Rights,which, as just mentioned, prohibits cruel and unusual punishments, also particularly declares that excessive fines shall not be imposed (p); [and the same statute further declares, that all grants and promises of fines and forfeitures of particular persons, before conviction, are illegal and void,]-a doctrine held long before (q): [since thereby many times undue means and more violent prosecution would be used for private lucre, than the quiet and just proceeding of law would permit. The reasonableness of fines in criminal cases has also been usually regulated by the determination of Magna (0) 1 W. & M. sess. 2, c. 2. (p) When the judges imposed a fine of 30,0007. on the Duke of Devonshire, for striking within the limits of one of his majesty's palaces, the house of lords determined that VOL. IV. their conduct was oppressive and M M [Charta, c. 14, concerning amercements for misbehaviour by the suitors in matters of civil right. "Liber homo non amercietur pro parvo delicto, nisi secundum modum ipsius delicti; et pro magno delicto, secundum magnitudinem delicti, salvo contenemento suo; et mercator eodem modo, salva mercandisâ suâ; et villanus eodem modo amercietur, salvo wainagio suo." A rule that obtained even in Henry the second's time (q); and means only that no man shall have a larger amercement imposed upon him than his circumstances or estate will bear; saving to the landowner his contenement or land (r); to the trader his merchandize; and to the countryman his wainage, or team and instruments of husbandry. In order to ascertain which, the Great Charter also directs, that the amercement, which is always inflicted in general terms (" sit in misericordiâ"), shall be set, ponatur, or reduced to a certainty, by the oath of good and lawful men of the neighbourhood. Which method of liquidating the amercement to a precise sum, was usually performed in the superior courts (s) by the assessment or affeerment of the coroner, a sworn officer chosen by the neighbourhood, under the equity of the statute of Westm. 1, c. 18; and then the judges estreated the amount into the Exchequer (t). Amercements imposed by the superior courts on their own officers and ministers, were affeered by the judges themselves; but when a pecuniary mulct was inflicted by them on a stranger to,] or person not being an officer of, the (q) Glanv. b. 9, c. 8, s. 11. (r) Lord Coke says, "that con"tenement signifieth his countenance, "as the armour of a soldier is his "countenance, the books of a scho"lar his countenance, and the like." -(2 Inst. 28.) He adds, that "the "wainagium is the countenance of "the villain; and it was great rea46 son to save his wainage, for other"wise the miserable creature was "to carry the burthen on his back." (Christian's Blackstone.) (s) In the court leet and court baron it was performed by affeerors, or suitors sworn to affeere; that is, tax and moderate the general amercement, according to the particular circumstances of the offence and the offender. The affeeror's oath is conceived in the very terms of Magna Charta. As to which, Black stoue (vol. iv. p. 380) cites Fitz. Survey, c. 11. (t) F. N. B. 76. court (u), [it was then denominated a fine; and the antient practice was, when any such fine was imposed, to inquire by a jury, "quantum inde regi dare valeat per annum, salvâ sustentatione suâ, et uxoris, et liberorum suorum (x).” And since the disuse of such inquest, it is never usual to assess a larger fine than a man is able to pay without touching the implements of his livelihood; but to inflict corporal punishment, or a limited imprisonment, instead of such fine as might amount to imprisonment for life. And this is the reason why fines in the king's court are frequently denominated ransoms; because the penalty must otherwise fall upon a man's person, unless it be redeemed or ransomed by a pecuniary fine (y); according to an antient maxim, qui non habet in crumenâ luat in corpore. Yet, where any statute speaks both of fine and ransom, it is holden that the ransom shall be treble the fine at least (z).] As to imprisonment (a), its measure, when imposed under modern Acts of parliament, is now usually limited so as not to exceed two years (b); but, in connection with it, the sentence frequently inflicts the additional severity of hard labour (c), or of solitary confinement, or both, accord for a period not less than two or more than five years. (As to these schools, vide sup. vol. III. p. 223.) See also 4 Geo. 4, c. 64, and 25 & 26 Vict. c. 44, enabling the visiting justices of gaols to direct pecuniary relief, in certain cases, to be afforded to prisoners on leaving prison, through the medium of a certified Discharged prisoners' aid society. (b) See 24 & 25 Vict. cc. 96, 97, 98, 99, 100, passim. By some earlier statutes, however, still in force, the periods of imprisonment authorized for offences under them respectively, are sometimes three and even four years. (z) Norton's case, Dyer, 232. (a) As to prisons and their regulation, vide sup. vol. 111. p. 233 et seq. It may be observed that persons under the age of sixteen, convicted of any offence before any court, magistrate, or justice of the peace, and whose sentence shall include imprisonment for, at the least, fourteen days,-may be ordered to (c) The punishment of hard labour be detained, after the period of im- is said to have been first introduced prisonment, in a reformatory school by 5 Ann. c. 6. (See R. v. Baker, ing to the nature of the case. By 7 Will. IV. & 1 Vict. c. 90, s. 5, it is however provided, that from thenceforth it shall not be lawful for any court to direct that any offender shall be kept in solitary confinement for any longer period than one month at a time, or than three months in the space of one year (d). Imprisonment, even where not the regular punishment, may sometimes be inflicted, in capital cases, by way of commutation for the punishment of death. For by 11 Geo. IV. & 1 Will. IV. c. 39, s. 7, in cases where the Crown shall extend mercy to a capital offender, on condition of imprisonment with or without hard labour, the court, or any judge of the courts at Westminster, to whom the intention shall be signified, shall allow the offender the benefit of a conditional pardon, and make an order for the imprisonment accordingly. As to whipping, the offender, under such modern Acts of parliament as authorize this punishment (e), may be directed to be whipped in addition to any imprisonment awarded. By 1 Geo. IV. c. 57, however, judgment shall in no case be given, that any female convicted of any offence, shall be whipped either publicly or privately: and in cases where the whipping of female offenders had, before that Act, formed either a part or the whole of the sentence, the court or justice of the peace is empowered to pass sentence of confinement to hard labour in the common gaol or house of correction, for any time not exceeding six months, or less than one month; (or of solitary confinement therein, for any space not exceeding seven days at any one time;) in lieu of the sentence of being publicly or privately whipped. Moreover, by the Criminal Consolidation Acts of 1861, already so often referred to, the addition of whipping by them authorized in reference 7 A. & E. 502.) Hard labour may (d) A similar limitation as to the reference to the offences punishable under them respectively, is inserted in each of the Acts of the present reign cited in the last note. (e) Vide sup. p. 517, n. (e), p. 528, n. (1). to a variety of the offences therein mentioned, is uniformly confined to males below the age of sixteen (ƒ); and the whipping is to be in private and only to be inflicted once; and the number of strokes and the instrument with which they are to be inflicted, are to be specified by the court in the sentence. And a similar provision is made by 25 & 26 Vict. c. 18, in reference to this punishment when awarded by a justice or justices in the exercise of his or their summary jurisdiction,—with the addition, that, in case of an offender whose age does not exceed fourteen years, the number of strokes inflicted shall not exceed twelve, and the instrument used shall be a birch rod. As to penal servitude, this is a sentence which has been very recently introduced in substitution for that of transportation beyond the seas (g). The principal statute in reference to such transportation is the 5 Geo. IV. c. 84 (h), by which the law on that subject was revised and consolidated in the year 1824. Under this Act, the sovereign is enabled, by and with the advice of the Privy Council, to appoint places beyond the seas, either within or without the dominions of the Crown, to which offenders under sentence of transportation may be conveyed and kept to hard labour; and also, under the royal sign-manual, to appoint places of confinement in England or Wales, for the confinement of convicts under sentence of transportation, until they are transported or become entitled to their (f) See 24 & 25 Vict. cc. 96, 97, 98, 99, 100, passim. In one instance (24 & 25 Vict. c. 96, s. 101), the age mentioned is eighteen; but this is probably a clerical error. (g) As to transportation, Blackstone remarks (vol. iv. p. 401) that it is "allowable and warranted by the Habeas Corpus Act, 31 Car. 2, c. 2, s. 14." It is said (Barr. on Statutes, 352) to have been first inflicted as a punishment by 39 Eliz. c. 4. As to its history, see R. v. Baker, 7 A. & E. 502; Bullock v. Dodds, 2 B. & Ald. 262, 267; Whitehead v. The Queen, 7 Q. B. 532. (h) This Act is amended by 6 Geo. 4, c. 69; 11 Geo. 4 & 1 Will. 4, c. 39; 2 & 3 Will. 4, c. 62; 4 & 5 Will. 4, c. 65; 7 Will. 4 & 1 Vict. c. 90; 6 & 7 Vict. c. 7; 10 & 11 Vict. c. 67; 16 & 17 Vict. c. 99, s. 7; 20 & 21 Vict. c. 3; 22 Vict. c. 25. |