January 13, 1895.]
CHINA OVERLAND TRADE REPORT.
63
economy to the owners to redrain now. It is may increase it or reduce it na yon like ec- ing out the steps which should be taken in provided in the new Ordinance that a honse can-cording to the position and ability of the offender not be reoccupied until the owner satisfies this Board, and redràining would be one of the con- ditions.
The CHAIRMAN-The bous as are to be put jua sanitary condition.
MR. LIGH➡Yes; and they are far from sanitary now.
The CHAIRMAN Then I will instruct Mr. Ram to inspect these houses and when he comes round to thept in th・ general inspection he will simply have to refer to his previous report.
It is simply doing part of the inspection ont of its regolar order. It will perhaps delay for ten days the work Mr. Ram is now engaged on.
The Board agreed,.
This closed the business,
MR. JUSTICE ACKEDYD ON FINES AND IMPRISONMENT.
MEETING OF THE ODD VOLUMES.”
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one.
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order that the fine or amercement should not be excessive. It is the case of Edwards v. Hughes and another. The judgment is by Chief Baron Gilbert and is dated 12 Geo. 1. 1726: It is there laid down that it was excessive if it took away from a merchant his merchandise or from a villain his cart or wainage, or, as Coke in his Institutes expounds the words of the statute, in such a manner that the sun rooment must not destidy the livelihood of the offender. These words "saving to him his contentment and to the merchant his merchandise "have been cou- stoned by another writer on criminal law to mean that the fine should be 80 : 10portioned to the ability and position of the off nder that the farmer should not in order to py be obliged to leave his field or the merchant to cease his business or the villein or labourer to sell his tools. This 1 tund is the real spirit of the act; a fine greater thau a man can pay should never be inflicted. It it is so it is xcessive and in this I am supported by the great authority of Lord Campbell, who in the case of R. v. O'Connell, referring to Magna Charts, says it provides thật no five shall be imposed beyond what the party is able to pay. I contend therefore that it was never contem plated that imprisonment should he resorted to, for not only were the fines
Bot Txcessive but means were taken that they should be rensonable. Therefore in order to ascertain the ability of a man to bear the fine my first contention is that +ICENS VA fines were not to be inflicted, that imprisonment was not in- tended, that by appointing a jury to assess the fine every precantior was taken, and that it has been ruled that no man is to be senter ced to pay a fine which he cannot pay. Now even supposing that a man is condemned to pay a fine which he has not the means of satisfying, 1 further submit you should not sentence that mantoimprisoLment. A fine is a premiary penalty. The legislature for certain offences has made that the only punishment; it hasi zeluded all others; and having obtained judgment for a sum of money you can- not change the penalty; you can only resort
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it is the most just and equitable punishment you can have Bentham says that there is no other punishment or penalty which can bù so nearly adjusted or fixed with due regard to the fortune of the offenders. But this theory, which looks so easy, is most difficult to put in o practice, and equality in the matter of fines is one of the most difficult problems of penal legislation. Many if not all codes have at tempted to solve the difficulty, but their provi. sions have in most cases been insufficient; either they have been too vague or they have placed too arbitrary a power in the hands of the judges. I have said that the system is an old The old hows n the subject had some bu maue provisions in respect of fines; for instance, lines were absolutely null, The judge conld lessen the amount thereof or even remit the one altogether. The poor were ex- empt from them. The penal code of Austria merely says that the fiue is to be proportioned to the means of the accused. In France they On Friday afternoon Itis Honour the Acting have fixed a maximum and I believe that the Chief Justica read a paper before the Odd recovery thereof is subjected merely to civil Volumes on the question Should imprison procOSS. In Prussia the poorest classes are ment he inflicted in default of payment of exempt, but are liable to detention In fines His Excellency the Governor occupied | Brazil the legislature has endeavoured to meet the chair. There was a large attendance and the difficulty by enacting that a fine shall the limited accommodation of the Society's room always be fixed by, what the accnsed can derive did not afford sitting accommodation for all, a each day from his property, his work, or em number of gentlemen having to stand in the ployment. It touches his revenue only. With doorway. There were several ladies present. respect to English legislation on the subject, His Honour's paper was as follows:-The sub-¦ it is very vague as to the amount of fae and ject upon which I propose to address you to-day the length of imprisonment which the court and which I will ask you to consider and discuss may impose In many cases no maximum is is one which perhaps at first sight may not mentioned. Fines were in the carly Saxon times appear as interesting as many which have on the only punishment for many crimes. Stephens former occasions engaged your attention, nor in his History of the Criminal Law of Eng- may it at first seem to be of any practical im- land," after enumerating the crimes known to portance. The question is, should imprison- Auglo-Saxon laws, says the punishments ap ment, with or without hard labour, be imposed pointed for them were either fives or corporal for non-payment of fines ? For the reasons I am punishment which was either death, mutilation, about to give I have been long opposed to it and or in some cases flogging. Imprisonment is not I trust that before I have finished I will be mentioned as a punishment, though it is re able to prove that this question has a very practi-ferred to as a way of securing a person who cal side and is des rving of your serious con could not give security. The fines were called critain medes of ex cation to enforce sideration. I maintain, first, that imprisonment wer, bote, and wite. Wer was the price set payment thereof if you beleve that the man for non-payment of fines is muconstitutional; it open a man according to his rank in life. If he can pay and will not pay. That a fine is is opposed to the fu damental principles of our was killed the wer had to be paid to bis relations; a pecuniary penalty and nothing more appears, I law on the subject; and although it has now a of he was convicted of theft they had in some submit, from the fiet that a woman, who was appearance of legal sanction, since it is autho cases to pay his wer to the king or bis lord supposed at one time to have no property of her rised by statutor ordinance, still I contend that it Bote was compensation to a person ir jured by a owy, éorld not be sentereed to pay a fine. See the is legal since it is against the fundamental law, crime, and wite was a fine paid to the king or ense et liv.homas and wit. The defendants and that instead of being of any use it is tais other lord in respect of an offence. Geuer- were sticted of keeping a disorderly house; the cuferons and oppressive, because a person senally speaking a crimes were ·on a first question of what punishment should be inflicted feteed to imprisonment for non-payment of a fine offence punishable. by wer, Lote. or on the woman was raised. The court said: “ The associates and works with other criminals and wite. After a previous conviction bote ordinary judgment in this case is the pillory, offenders, and that such a system is not only might no longer be made. Certain crimes were but for misdemeanour the court is rot tied down bad but positively injurious both to the state boteless, or inexpiable, such as housebreaking, to any particular judgment It is represented and to the individual. A fine, as you all no aison, open theft, and treason sgajust the law. the woman is unable to suffer any corporal doubt know, is a pecuniary punishment Certain changes were made between these times punishment and as sheis a married woman and has or recompense for an offence committed against and the reign of John, which it is not necessary nothing withal to pay a fine the punishment must- the Queen or her laws or against the lord of a here to mention, and fines grew in quality and be imprisonment." There was no question in manor.
It is the lowest species of punishment amount, in a great measure no doubt on account that case of inflicting a pecuniary penalty and which can be awarded. It is provided as a ¦ of the wants of the King's exchequer, until we then turving it into detention or imprisonment. punishment together with imprisonment for come to the Magna Charta And in considering its But supposing it is thought right to enforce som crimes and misdemeanonis, or as the sole | provisions in this respect, rememberthat when we execution by personal errest, then I say by no punishment which the court can indict in other read there of fines, it mears not fines for the reasoning can you or should you treat the man cases. The court may in its discretion inflict a numberless small matters for which they are 88 a criminal. The law has pronounced fine as the sole punishment for such a grave now impos. but they were then the only punish a pecuniary penalty against him, in many cases offence as manslaughter, whilst it is is the ment for other more serious offences or crimes. has repudiated all other punishment, and there- penalty which the legislature has prescribed for Now Magna (harta says: "A freeman shall not fore you cannot treat him as a criminal. Poverty the infringement of the most unimportant be fined for a small fault but after the manner is no crime, In many cases the act for which municipal by laws or regulations It is the sole of the fault and for a great fault after the great- you are punishing I'm has rothing criminal punishment in the vast number of breaches of mess of the fault, saving to him his contentment, about it; it may be the result of forgetfulness by-laws and regulations made in order to prevent and a merchant likewise, saving to him his mer- negligence, or ignorance. Very often it is an petty nuisances or to enforce the exsontion of chandise, and any other villein than ours act for which." the legislature never would administrativa measures of public importance or shall be likewise amerced, saving his wainage think of inflicting imprisonment; therefore it to carry out those rules which the necessities of if he fall into our merey." This wasa rule is oppressive. It is altogether illegal to our present state of civilization have called into that obtained even in Henry II's time imprison as А criminal a men who cannot existence, or which the requirements of public and means
only that DO man shall havea pay and thus indirectly to irflict imprison health and safety, education and revenue, and larger amercement imposed upon him than ment where the legislature has refused to other like matters have made, imperative. We his circumstances or, personal estate can hear, do so. The most you can do is to sue him as an may at any moment unwillingly, almost unknow. and in order to ascertain this the great Charter ordinary civil debtor. You will perhaps be sur- ingly, bring ourselves within their bounds it directed that the amercement should be set prised to hear that a man who car not pay a fine is therefore a matter of importance for us to en- or reduced to certainty by the oath of the arbitrarily imposed upon him without any inquiry quire what is the penalty to which in those good sud lawful men of the neighbourhood. In as to his circumstances and his ability to pay, is cases each and every one of us may at any mo the superior courts this assessment was made by as a rule subjected to imprisonment with hard ment subject ourselves by our neglect or omis the coroner or sworn officer. In other courts it labour. The rules of the gaol do not provide rion or ignorance. The system of inflicting was fixed by assessors sworn to tax ad moderate for the separation of this class of prisoners fines as a punishment dates back at least the general amercement according to the parti- from other prisoners except that first offenders as far as the Roman Empire. To preserve or- cular circumstances of the offence and the of are kept apart from old cffenders. They do der and discipline in the great and beautiful city fender. When a pecuniary penalty was inflicted the usual hard labour for prisoners sentenced they were building up they found it necessary on a stranger in the superior courts the judge to hard labour, which is shot drill and stone and parbaps profitable to resort to this kind of appointed a jury. On this matter there is drill for the firs! three months and after that punishment, in praise of which a great deal has a very instructive case as to the use and a combination of shot or stone drill or oakum been said, for it has been urged that as you necessity of these assessments and point-picking or employment in a washhouse. There