appointed a jury. Dn this matter there is aud a very instructive case to the us
AS arcessity of these assessments and point- ing at the steps which should be taken in der that the fine or amer:sment should not be excessive. It is the case of Edwards v Ingles and another. The judgment is by Chief Baron (Hilbert and is dated 12 Geo. I. 1726 It is there laid down that it was exe-saje. if it took away from a merchant bis merebandi-e or from a vill in his cart or wainage, or, as Coke in his Institutes expounds the words of the statate, la such a manner that the am roemen€ must not de by the fivelihood of the off-nder. These words ring to him bis dontestraunt and to the merchant hi merchandise" have been con- strned by another writer, do criminal law to mean that the fine shodli ho sa proportioned to the ability and position of the offender that the farnier should but in order to pay be obliged 1 leave bis field or the merchant to asase his business or the villein or labourer to sell his tools. This intend is the real spirit of the ant; a Bue greater than a man can pay should uerer be infliet.d. If it is go it is ressive and in this I am supported by the great authority of Lord Campbell, who in th orse of B. e. O'Connell said: "And that such is the maning of Magna Charts may be in- forred from the Stainle of 5 Edward L. e. 6, which enols that no man sell bameroed without rea- sonable cause and according to the quantity of his trespass, that is to say, every freeman avving his į freeboid, a marchaut savi g his marchaudis, and a villein saving his waidage." And in i. 0. O'Couuel Lord Campbell referring to Magna Charta says it provides that no fine shall be imposed beyond what the party is able to pay. 1 contend therefore that it was never contem- plated that imprisonment should be resorted to, for not only wore the fans not to be excessive but means were taken that they should be reasonable. Therefore in order to ascertain the ability of u mao to bar the fue my first coutention is that excuse Te fines were not It be inflicted, that imprisonment was not in- tended, that by appointing a jury to assess the fing every precautio was taken, and that it has | been ruled that no man is to be sentenced to pay a fine which he cannot pay. Now even supposing that a man is condemned to pay a fine which be bis not the menus of satisfying, 4 further submit you should not sentencslist mantoîmprisonment. A fiue is a poemiary penalty. The legislature for certain of mods has made that the ouly punishowent; it has x ended all others; and having jobtained judgment or a sun of money you can- not change the penalty; you can ouly resort to certain modes of ex cation to enforce payment thereof if you bat.eve that the man aan pay and will not pay. That a Sue is a pecuniary penalty and nothing mo o appars. I submit, from the fact that a woman, who was supposed at one time to have no property of her aw, conld not be sentenced to pay a fine. See the case of R v. Thomas and wife. The defendants were convicted of keeping a disorderly honse; the question of what punishment should be indicted on the woman was raised. The court said: The ordinary judgment in this case is the pillory.¦ but for misdemenour the conet is not find down to any par. ioular judgment It is represent] the woman is unable to suffer any corporal punishment and as she is a married woman and has nothing withal to pay a tine thy panishment wust be imprisonment." There was no question in that ease of inflicting a preusing puolty and then turning it into a corporal pauishment Bat supposing it is thought right to enfores ex-en- tiou by personal arrest, then I say by no reasoning can you or should you treat the man 38 a criminal. The law has pronoune d a pecuniary penalty against him. in many cases has repudiated all other pauishment, and ther fore you cannot treat him as a criminal. Poverty is no crime. in many cases the set for which you are punishing him has nothing criminal about it; it may be the result of forgetfulness. negligens, or ignorance. Very often it is an set for which the legislature never would i think of inflating impéis iament; therefore it is oppressive. It ts altogether illegal to imprienn as a criminal a man who caunot pay And thus indirectly to inflict imprisoa- ment where the legislature has refused to do s..
TL most gone to is to sue him as a
ordinary civil debtor You will perhaps be sur prised to hour that a man who exauot pay a fine!
{
arbitrarily.
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arbitrarily imposed upon hia without any inquiryį as to his circumstances and his ability to pay, is subjected to imprisonment with hard labour. The raies of the gaul do not provide for the separation of this class of prisoners from other prisoners ex- oept that first offenders are kept apart from old offenders. They do the usual hard labour for prisoners sentenced to hard labour, which is shot. drill and stone drill for the first three mouths and after that a combination of shot or stone drill or oakum picking or employment in a washhouse. There is no separation from other criminals, but hard labour like them and in association with them. And for what crime I ask? None whatever. The fault or offence or omission or nyligence of which the defendant bas! been guilty has been wiped out by the judgment; the only punishment which has hug awarded against him is a peuniary one; his only crime is poverty. There is nothing what- var to be gained from this treatment and I will show that instead of doing any good whatever It may be asked what to the state it does harm
is the remedy 1 proposa if I ohjet to imprison- Bent and what are you going to substitute for 11.2 I look with no fear at h proposal of aban doning this oppressive ponishment. Dok at the cruel punishments which formerly disgraced onr criminal code, the pillory, nose-splitting, bara- ing in the ban is, frequent and severe whippings, and others of the same kind. They have been Former'v abolished and only good has resulted. death was the pnnishant for nearly every erims except patty larceny and a few other minor offences. change was made and w have not suffered from this just and merciful amelio- ration in the law. Then again look at the ablition of imprisonment for debt; think of all the evils to credit, commerce, and to the prosperity of the nation which it was predicted would follow this unman legislation. If a punish- meat is out of proportion to the offence it must be abolished, but the trus remedy I say is first Dnot imposa of all to keep within the law. excessive fines; do not fix mor than a mas can pay. You must fix them according to the offauce and to the ability of the man to pay, and if you think you have a right to imprison a man for unn-payment, then let him be treated not as a criminal but as an ordinary debtor. fines are excessive here I have
That 00 doubt
I take a few iustaners at random. A China-i mau for illegally dealing in samshu is fined $50 or two mouths; for injecting morphine $50] or two months; for possession of two mace of ore. pared opiam and four mace of dross opium $150 or three months; a certain number for being All these without a night pass $7 or 28 days.
i
man or most of them go to prison. Now I take ope instance to show the evils of the presont system. A Chinese boatman, eager to get a first jare or to be first on board, fastens to
He is finei steamer while still under way, $25; that is an arbitrary and excessiva fi 19
ding not only to the A ne should be axd according cffence but to the quality of the man who has to pay it.
He cannot pay and he is condemned tai
so many weeks' imprisonment with bard labur. Ha is sent to gaol and associates with thieves and all other bad characters and does the same work as they do. He sees the same punishment meted out to a man whose only fault bas been a little too great eagerness in a desire honestly to earn his daily broad and to another whose aim in life has always bean to make bis liv. ing out of the earnings of others. The man who sess no difference in the punishment will say that there is no difference in the guilt and when be comes out ten to one if he is in want, cannot find I work, and has wife and children dependent on him he will steal. You have made a criminal of him. Better a thousand times to have allowed this in. fraction of a regulation to pass with a wara wark ing is arrest and loss of a day's labour is quite sufficient. Better a thousand times, I repeat, to allow these things to pass than mauufacture eri- minals wholesale. Keep men out of prison as long as you can; let them look at those walls and imagine to themselves that all kinds of punish- ment are going on within them; for goodne s saka do not send a man to prison because be is not a millionaire. From some remarks made ou some of my sentebees I gather I am con- sidered a lenient judge. When a hardened thief comes before me he gots bis deserts; nothing more I trnst; and when a wao has committed a crime with violence I have used the power the law give me; bat 1 hare a horror of sending to prison