Enclosure 1.
2089 InEC:
153
Colony, both European and
Chinese.
I have the honour to be,
My Lord Marquess, Your Lordship's Most Obedient
Humble Servant.
William Robingry
(
The Daily
Pirss.
HONGKONG, JANUARY 19tя. 14:5
MR. JUSTICE ACKROYD ON FINES AND IMPRISONMEN U
MERTING OF THE ODD VOLUMES." Yes erday afternoon His Honour the Acting hief Justice read a paper before the Odd Volumes" on the question "Should imprison not be inflicted in default of payment of hnos?" His Excellency the Governor occupied by the chair. There was a large attendance and the limited accommodation of the Society's room did out affard sitting accommodation for all, a anuber of gentlemen having to stand in the doorway. There were several ladies present.
His Honour's paper was as follows:-The sub- ject upon which I propose to address you to day and which I will ask you to consider and dizenas is one which perhaps at first sight may not appear as interesting as many which have ou farmer occasions engaged your attention, nor may it at first seem to be of any p actical in- portance. The question is, should imprison. inent, with or without hurd labour, be imposed for non-payment of fines. For the reasons I am about to give I have been long opposed to it and 1 trust that before I bare finished I will b able to prove that this question has a very practi- oal side and is deserving of your serious con- sideration. I maintain, first, that imprisonment for non-payment of fines is unconstitutional, it is opposed to the tu .damental principles of onr law on the subject; and although it has now an appearance of legal sanction, since it is autho rised by statateorordinanes, still I contend thatit is illegal. since it is against the fundamental law, and that instead of being of any use it is mis chievous and oppressive since a person sentenced to imprisonment for non-payment of a fice a-sociates and works with other criminals and offenders, and that such a system is not only bad but positively injurious both to the state and to the individual. A fine, as you all no doubt know, is a pecuniary punishment or recompense for an affeace committed against the Queen or her laws or against the lord of a manor. It is the lowest species of punish Rent which can be awarded. It is provided as a punishment together with imprisonment for somo orimes and misdemeanours, or as the le pauishment which the court oan inflict in other cases. The Court may in its discretion inflict a fine as the sole punishment for such a grave effauce as manslaughter, whilst it is als the penalty which the legislature has prescribed for the infringement of the most animportant annicipal by-laws or regulations. It is the sole punishment in the vast number of breaches of by-laws and regulations made in order to preventi petty uuisances or to enforce the execution of administrative measures of public importauus ori to carry out those rules which the necessities of our present state of civilization havo called into existenos, or which the requirements of public h-alth and safety, education and revenue, and other like matters have made imperative, may at any moment unwillingly, almost unknow. ingly, bring ourselves within their bounds is therefore a matter of importance for us to en- quire what is the paualty to which in thos cases each and every one of as may at any mo nent subject ourselves by our neglect or omis. sion or ignorance. The system of inflicting fines as ล punishment dates back at least Roman Empire. To pre-
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the
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as far serve order and discipline in the great oily they were building up they found it necessary and parhapa profitable to resort to this kind of punishment, in praise of which a great deal has been said, for it has been urged that as you may increase it or reduce it as you like it is the most just and equitable punishment you can have Beathan says that there is so
other
are
The
other pauishment or poulty which can be so nearly adjusted or fixed with due regard to the fortnue of the offenders. But this theory, which looks so easy, is most difficult to put in o praction, and equity in the matter of ines is an of the most difficult problems of peul legislation. Many if not all codes have at- templed to solve the difficulty, but their provi- sions have in most cases been insufficient: sither they have been too vague or they have placed too arbitrary a power in the hands of the indges. I hara said that the system is an old ono. The old laws on the subject had some hu- mane provisions in respect of faes; for instance, excessive Gines were absolutely null, judge could lessen the saucant thereof or even remit the Sne altogether. The poor were ox- ' empt from them. The penal cade of Austri werely says that the fiue is to be proportioned to the mosus of the amused. ln Francs they have fixed a maximum and I believe that the recovery thereof is subjected merely to civil In Prussia the poorest classes are process.
liable to detention exempt, but Brazil the legislature has endeavoured to meet the difficulty by enacting that a fine shall always be fixed by what tho accused can derive i each day from his property, his work, or era- ployment. It touches bis revenue only. With respect to English legislation on the subject, it is very vague as to the amount of fine and the length of imprisonment which the court may impose. In many eases no maximum is ueationed. Fines were in the early Saxon times the only punishment for many crimes. Stephens in bis History of the Common Law of Eng land," after ounerating the erimes known to Auglo-Saxon laws, says the punishments ap pointed for them were either fines or corporal punishment. which was either datu, mntilation, for in some cases flogging. Imprisonment, is not mentioned as a pauishment, though it is re- ferred to as a way of securing a person who could not give security. The flass were called wer, bote, and wits, War was the price sat nyou a man according to his rank in life. If he was kill the war had to be paid to his relations; if he was convictel of theft they had in some cases to pay his wer to the king or bis lord. Bate was compensatio· to a person injured by a crime, and wite was a fiue paid to the king or other lord in respect of an offence. Geoer. frst ally speaking al crimes offence
by Wer punishable
hote, with..
After previous conviction
B might no longer be inado. Certain crimes were, hoteless, or inexpiable, such as housebreaking, argon, open theft, and treason against the law. Certain cheng were made between those times and the reign of John, which it is not necessary : liere to mention, and fines grew in quality and amenat, in a great ensure no doubt on account of the wants of the King's exchequer, until we cometo the Magna Charta. And in considering its provisions in this respect, rememberthat when we read there fines, it means not flues for the numberless small matters for which thay ars now imposed, but they were then the ouly punish- went for other wore sarious offences or crimes. Now Magoa Charta says: "A freeman shall not be fined for a small fanlt but after the manner of the fault and for a great fault after the great. rss of the fault, saving to bim his contentment. and a merchant likewise, saving to bim bis mer- chandise, and any other villein shall be likewise amero-d, saving bis wain ge if he fall into our mercy." This was a rule that obtained even in Henry It's time and moans only that no maa shall bave larger amercemont imposed upon him than as circumstauoss or personal estate can bear, and in order to ascertain this the great Char ar directed that the amere-ment should be sat or reduced to nertainty by the oath of the Ia good and lawfat men of the neighbourbouré
was made by the superior courts this assesstien tha euroner ur sworn officer. In other courts it was fix d by assessors sworn to taxa d moderate the general amorcement secording to the parti- eular circumstances of the offence and the ot fender. When a pecuniary penalty was inflicted
were on
or
hote
on a stranger in the superior courts the judge
appointed
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