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- Disgusting as this catalogue may seem, it will afford pleasure to an English reader, and do honour to the English law, to compare it with that shocking apparatus of death and torment, to be met with in the criminal codes of almost every other nation in Europe. And it is moreover one of the glories of our English law, that the species, though not always the quantity or degree, of punishment, is ascertained for every offence; and that it is not left in the breast of any *judge, nor even of a jury, to alter that judgment, which the law has beforehand ordained, for every subject alike, without respect of persons. For, if judgments were to be the private opinions of the judge, men would then be slaves to their magistrates ; and would live in society, without knowing exactly the conditions and obligations which it lays them under. And, besides, as this prevents oppression on the one hand, so, on the other, it stifles all hopes of impunity or mitigation ; with which an offender might flatter himself, if his punishment depended on the humour or discretion of the court. Whereas, where an established penalty is annexed to crimes, the criminal may read their certain consequence in that law, which ought to be the unvaried rule, as it is the inflexible judge, of his actions,
which have been noticed in various places, ante; and the present punishment for each individual offence has been also described in the notes to such part of the text as treated of such of' fence; see the different titles in the index to the notes. The new statutes, in many instances, expressly authorize the infliction of two kinds of punishment, as imprisonment and hard labour, &c. This was necessary; for, under the 22 Geo. III. c. 58 (now repealed), which directed the punishment to be fine, imprisonment, or whipping, it was held that no two of those kinds of punishment could be inflicted; Rer v. Howell, R. & R. C. C. 253. The misinterpretation of the new statutes has also been further guarded against by the 14th section of the 7 & 8 Geo. IV. c. 28, which enacts, that wherever that, or any other statute, relating to any of fence, whether punishable upon indict
ment or summary conviction, in de-
The discretionary fines and discretionary length of imprisonment, which our courts are enabled to impose, may seem an exception to this rule. But the general nature of the punishment, viz. by fine or imprisonment, is, in these cases, fixed and determinate : though the duration and quantity of each must frequently vary, from the aggravations or otherwise of the offence, the quality and condition of the parties, and from innumerable other circumstances. The quantum, in particular, of pecuniary fines, 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 that struck another, five and twenty denarii : this, 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 as far from being wholly arbitrary ; but its discretion is regulated by law. For the bill of rights (d) has particularly declared, that excessive fines ought not to be imposed, nor cruel and unusual punishments inflicted ; (which had a retrospect to some unprecedented proceedings in the court of King's Bench, in the reign of king James the second :) and the same statute further declares, that all grants and promises of fines and forfeitures of particular persons, before conviction, are illegal and void. Now the bill of rights was only declaratory of the old constitutional law : and accordingly we find it expressly holden, long before (e), that all such previous grants are void ; 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 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, salvå mercandisá suá; et villanus eodem modo, amercietur, salvo wainagio suo (8).” A rule, that obtained even in Henry the second's time (S), and means only, that no man shall have a larger amercement imposed upon him, than his circumstances or personal estate will bear ; saving to the landholder his contenement (9), or land ; to the trader his merchandise ; 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 misericordia,” 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 by the assessment or affeerment of the coroner, a sworn officer chosen by the neighbourhood, under the equity of the statute Westm. 1, c. 18; and then the judges estreated them into the exchequer (g). But in the court-leet and court-baron it is still 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 (h). 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, not being party to any suit, it was then
(f) Glanv. I. 9, c. 8, and 11. in the very terms of Magna Charta ; (g) F. N. B. 76.
Fitzh. Survey, ch. 11. (h) The affeeror's oath is conceived
(8) A freeman shall not be amerced nement signifieth his countenance, as for a small offence except according to the armour of a soldier is his countethe measure of his offence, and for a nance, the books of a scholar his coungreat offence, according to the magni- tenance, and the like;" 2 Inst. 28. He tude of his offence, saving to him his also adds, that “the wainagium is the contenement, and the merchant in the countenance of the villain, and it was same way, saving to him his merchan- great reason to save his wainage, for dise, and the countryman in the same otherwise the miserable creature was to way, saving to him his wainage.
carry the burden on his back ;” Ibid. (9) Lord Coke says, that "conte. - Ch.
Attainder is the immediate con.
denominated a fine (i); and the ancient practice was, when any such fine was imposed to inquire by a jury “quantum inde regi dare valeat per annum, salvá sustenstatione sua, et uxoris, et liberorum suorum (j) (10).” 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 (k): according to an ancient maxim, qui non habet in crumend luat in corpore(11). Yet, where any statute speaks both of fine and ransom, it is
holden, that the ransom shall be treble to the fine at least (1).
the When sentence of death, the most terrible and highest sequence of judgment in the laws of England, is pronounced, the immedeath, or of out- diate inseparable consequence from the common law is atcapital offence. tainder. For when it is now clear beyond all dispute, that
the criminal is no longer fit to live upon the earth, but is to be exterminated as a monster and a bane to human society, the law sets a note of infamy upon him, puts him out of its protection, and takes no further care of him than barely to see him executed (12). He is then called attaint, attinctus, stained or blackened. He is no longer of any credit or reputation ; he cannot be a witness in any court; neither is he capable of performing the functions of another man: for, by an anticipation of his punishment, he is already dead in law (m). This is after judgment: for there is great difference between a man convicted and attainted; though they
are frequently through inaccuracy confounded together. [*381] After conviction *only, a man is liable to none of these dis
abilities : for there is still in contemplation of law a possibility of his innocence. Something may be offered in arrest (i) 8 Rep. 40.
(1) Dyer, 232.
lawry for a
(10) How much he can afford to give to the king by the year, saving to him, sustenance for himself, his wife, and his children.
(11) He who has nothing in his
purse, must pay in his person.
(12) But his person is still so far under the protection of the law, that to kill him without a warrant would be murder ; Fost. 73.
quences of at. tainder are,
of judgment: the indictment may be erroneous, which will render his guilt uncertain, and thereupon the present conviction may be quashed: he may obtain a pardon, or be allowed the benefit of clergy; both which suppose some latent sparks of merit, which plead in extenuation of his fault. But when judgment is once pronounced, both law and fact conspire to prove him completely guilty ; and there is not the remotest possibility left of any thing to be said in his favour. Upon judgment therefore of death, and not before, the attainder of a criminal commences : or upon such circumstances as are equivalent to judgment of death; as judgment of outlawry on a capital crime, pronounced for absconding or fleeing from justice, which tacitly confesses the guilt. And, therefore, either upon judgment of outlawry, or of death, for treason or felony, a man shall be said to be attainted.
The consequences of attainder are forfeiture and corrup- The consetion of blood.
I. Forfeiture is twofold ; of real, and personal estates. Forfeiture of First, as to real estates : by attainder in high treason (n) a sonal estates : man forfeits to the king all his lands and tenements of inheritance, whether fee-simple or fee-tail, and all his rights of entry on lands and tenements, which he had at the time of the offence committed, or at any time afterwards, to be for ever vested in the crown: and also the profits of all lands and tenements, which he had in his own right for life or years, so long as such interest shall subsist. This forfeiture relates backwards to the time of the treason committed : so as to avoid all intermediate sales and incumbrances (0), but not those before the fact: and, therefore, a wife's jointure is not forfeitable for the treason of her husband; because settled upon her previous to the treason committed. But her dower *is forfeited by the express provision of statute 5 and 6 [*382] Edw. VI. c. 11. And yet the husband shall be tenant by the courtesy of the wife's lands, if the wife be attainted of treason (p): for that is not prohibited by the statute. But, though after attainder the forfeiture relates back to the time of the treason committed, yet it does not take effect unless an attainder be had, of which it is one of the fruits : and therefore, if a traitor dies before judgment pronounced, or is killed in open rebellion, or is hanged by martial law, it works.
real and per
(n) Co. Litt. 392; 3 Inst. 19; 1 Hal. (0) 3 Inst. 211. P. C. 240; 2 Hawk. P. C. 448.
(p) i Hal. P. C. 359.