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felony) it [has the same advantage when pleaded here, as when pleaded upon arraignment, viz. the saving the attainder. And, certainly, upon all accounts, when a man hath obtained a pardon, he is in the right to plead it as soon as possible.]

[If all these resources fail, the court must pronounce judgment;] by awarding the punishment [which the law hath annexed to the crime; and which hath been constantly mentioned, together with the crime itself, in the course of the former chapters;] and such judgment ought regularly (as in civil actions) in all cases to be recorded (i). The punishment of offences is in some cases governed by the common law only, but is more frequently defined by statute (k). In misdemeanors, it is generally fine or imprisonment, or both; in felonies, it is, in some instances, death, but usually imprisonment or penal servitude: the imprisonment being frequently accompanied (both in misdemeanor and felony) with hard labour-to which whip

(i) By 4 Geo. 4, c. 48, whenever any person shall be convicted of any capital felony, except murder, and the court before whom he is convicted shall be of opinion that, under the particular circumstances of the case, he is a fit subject for the royal mercy, the court may abstain from pronouncing judgment of death, and instead of pronouncing it, only order it to be recorded; which, being entered on record, is to have the same effect as if the judgment had been pronounced, and the offender reprieved. By 6 & 7 Will. 4, c. 30, and 7 Will. 4 & 1 Vict. c. 77, s. 3, the above exception was in effect taken away; but both of these last provisions are now (so far as respects the present point) repealed by 24 & 25 Vict. c. 95, and the power

of the court (under 24 & 25 Vict. c. 100, s. 2) to cause sentence of death to be recorded in cases of murder, appears to be somewhat doubtful. See Criminal Acts, by Greaves, p. 30; Arch. Pl. & Ev. in Crim. Ca. 15th ed. 534; Rosc. Dig. C. C. 208.

(k) In a case of a felony for which no other punishment is provided, there may, by 7 & 8 Geo. 4, c. 28, s. 8, and 20 & 21 Vict. c. 3, be awarded penal servitude to the extent of seven years, or imprisonment (with or without hard labour, solitary confinement and whipping) to the extent of two years. In case of a misdemeanor for which no other punishment is provided, there may be awarded, by the common law, fine and imprisonment at the discretion of the court.

ping (1) and solitary confinement, to the extent presently to be mentioned, are also sometimes added.

In cases punishable at common law, the judge has a discretion whether fine or imprisonment, or both, shall be awarded, and the measure of either is also left to his decision. And where the punishment is fixed by statute, there is also usually reposed in him, in cases of felony, a discretion between imprisonment and penal servitude; and in case both of felony and misdemeanor, (where either of these modes of punishment is adopted,) a power of determining, within certain limits at least, the period of its duration (m). The judge, however, cannot award either death or penal servitude, for any offence to which such punishment is not specifically made applicable by the law itself. And by the Bill of Rights it is declared as one of the antient rights and liberties of the subjects of this

(1) The punishment of whipping (as to which see further, post, p. 532) was inflicted, at common law, on persons of inferior condition, who were guilty of petit larceny, and other smaller offences, but it seems that, by the usage of the Star Chamber, it was never to be inflicted on a gentleman (1 Chit. C. L. 796). Blackstone enumerates also (vol. iv. p. 377) the pillory, the stocks, and the ducking stool, as ignominious punishments known to the English law. But the first of these is abolished by 7 Will. 4 & 1 Vict. c. 23, and the two last are disused.

(m) Whenever sentence is passed for felony, on a person already im. prisoned under sentence for another crime, the court may award imprisonment for the subsequent offence, to commence from the expiration of the first imprisonment (7 & 8 Geo.

4, c. 28, s. 10). And where such person is already under sentence either of imprisonment or penal servitude, the court, if empowered to sentence to penal servitude, may award it for the subsequent offence, to commence at the expiration of the first sentence; and this, although the aggregate term of imprisonment or penal servitude, respectively, may exceed the term for which either punishment could otherwise be awarded. (7 & 8 Geo. 4, c. 28, s. 10; 16 & 17 Vict. c. 99; 20 & 21 Vict. c. 3.) Moreover in all cases where the court by any statute is empowered or required to award a sentence of penal servitude exceeding seven years, the court may substitute the term of seven years, or else imprisonment, with or without hard labour, to the extent of two years (9 & 10 Vict. c. 24; 20 & 21 Vict. c. 3).

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
illegal. (11 Harg. St. Tr. 136; and
see as to Oates's case, 4 Harg. St.
Tr. 106.)
(q) 2 Inst. 48.

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, salvâ 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

(9) 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 66 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 rea

66

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, Blackstoue (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, salvá 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

(u) 8 Rep. 40. The words of Blackstone are" a stranger, not "being party to any suit"-(4 Bl. Com. 380); but Lord Coke says, "a "" stranger to the court."

(x) Gilb. Excheq. c. 5.

(y) Mirrour, c. 5, s. 3; Lamb. Eirenarch. 575.

for a period not less than two or more than five years. (As to these schools, vide sup. vol. 1. 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,

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