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Lord Coke says, a fine signifieth a pecuniary punishment for an offence, and regularly to it imprisonment appertaineth. 1 Inst. 126 b. And hence it is that the statutes simply authorise the Courts to impose the fine, and its payment is enforced according to the course of the common law. The framers of the 9 Geo. 4, c. 31, were well aware that this was the law; and by s. 9, in the case of manslaughter, by s. 20, in the case of taking away girls under sixteen years of age, and by s. 23, in the case of assaults on clergymen, the Court was empowered to adjudge the offender to pay a fine; but no provision was made in any of these cases as to what was to be done in default of payment. No one will doubt that Lord Campbell knew the law in this respect; and it is well known that he drew his Libel Act, 5 & 6 Vict. c. 96, with his own hand; and by ss. 4 & 5 of that Act the Court may impose a fine, and there is no provision in default of payment. It would be waste of time to refer to other like enactments on a point so perfectly clear.
All the preceding observations, except those founded on the 9 Geo. 4, c. 31, and 5 & 6 Vict. c. 96, apply equally to detaining an offender in prison till he finds sureties. But one precedent in point may be added. The 37 Geo. 3, c. 126, S. 4, makes every person uttering foreign coin liable to six months' imprisonment and to find sureties for good behaviour for six months after the end of such imprisonment, and in case of a second conviction sureties are required for two years; but no power of commitment is given in either case. Again, both the 1 & 2 Phil. and Mary, c. 13, s. 5; and the 2 & 3 Phil. and Mary, c. 10, s. 2, gave justices, who examined persons charged with felony, "authority to bind all such by recognisance as do declare anything material to prove” the felony, and contained no provision as to what was to be done if the witness refused to be bound. Now, in Bennett v. Watson, 3 Maule & S. 1 (a), it was held that under
(a) Fully approved of in Evans v. Rees, 12 Ad. & E. 55.
those statutes a justice might lawfully commit a person
who was a material witness upon a charge of felony brought before him, and who refused to appear at the sessions to give evidence, in . order that her evidence might be secured at the trial, and Dampier, J., said, “the power of commitment is absolutely necessary to the existence of the statute of Phil. and Mary; for unless there were such a power, every person would of course refuse to enter into a recognisance, and the magistrate could not compel him; and then, if he could further avoid being served with a subpoena, the delinquent might escape unpunished.” This is a very much stronger case than the case of a convict required to find sureties, for he is already in prison, whereas the witness is at liberty, and, therefore in his case, the power both to apprehend and commit has to be implied.
It is perfectly clear, then, that the Courts have power under these clauses to order an offender to be detained in prison until he pay a fine and find sureties.
But supposing a provision had been introduced expressly empowering the Court to award imprisonment until the fine was paid and the sureties found, it would have made these clauses inconsistent with s. 5 of the Offences against the Person Act, which follows s. 9 of the 9 Geo. 4, c. 31; and if that had been altered likewise, both would have been made inconsistent with Lord Campbell's Libel Act, and the other Acts containing similar clauses. To this answer Mr. Saunders replied, “Taking Mr. Greaves' exposition to be correct that the common law incident of imprisonment attaches upon nonpayment of the fine, the objection that the imprisonment is indefinite still remains in force. If the fine is not paid, is imprisonment in default to be everlasting?" We rejoin that imprisonment for nonpayment of a fine under this clause is and was intended to be exactly the same as for non-payment of a fine upon a conviction for any common law misdemeanor; that the object of this clause in this respect was to place all misde
meanors against these Acts precisely on the same footing as common law misdemeanors; that no complaint had ever been made of the common law on this subject, and therefore there was not only no reason for any alteration in it, but its long use without objection afforded a very good ground for extending it to all similar cases, and that any alteration in these Acts would have rendered the law on the subject inconsistent; for it would have rendered the law different in misdemeanors under these Acts from what it was with like offences at common law.
4. But, Mr. Saunders asked, Is the offender to be committed to hard labour and for a time certain ? Undoubtedly neither the one nor the other. The imprisonment for nonpayment of a fine or not finding sureties is not by way of punishment, but in order to compel the payment of the one and the finding of the other, and therefore it is merely imprisonment until he pay the fine and find the sureties, exactly the same as it is in cases of common law misdemeanors. To this Mr. Saunders replied, that "it was further objected that upon imprisonment in default of paying the fine the Court has no power to impose hard labour. This Mr. Greaves admits.” Now this is a misrepresentation. Mr. Saunders originally merely asked, "Is it (the imprisonment) to be with or without hard labour ?" and we, having answered that question conclusively, Mr. Saunders puts this new objection, and adds, “surely the power of imposing hard labour would be in many cases an active stimulant towards accomplishing the end desired.” It might just as well be said that the Court ought to have been empowered to order the defendant to be whipped every day until he paid the fine, which would, we conceive, have been a more active stimulant than hard labour. The question is not, however, what is the best stimulant to make the offender pay the fine; but what is the proper substitute for nonpayment of the fine? By the common law, simple imprisonment has always been that substitute. We have shown that in summary cases, wherever justices have authority either to fine and imprison, whether with or without hard labour, they never ought to have power to award imprisonment with hard labour for nonpayment of a fine, Introduction to lst Ed., ante, p. xxxiii., and our reasoning is completely supported by the high authority of Chief Justice Cockburn, in Reg. v. Willmott, 1 E. B. & S. 27. We will now apply the same reasoning to imprisonment for nonpayment of a fine on conviction for a misdemeanor against these Acts, and we cannot do better than take the example of dog-stealing under the 24 & 25 Vict. c. 96, s. 18; by which any person who steals a dog may either be imprisoned with or without hard labour for not exceeding six months, or shall forfeit over the value of the dog not exceeding 201., and by sec. 107, in default of payment he may be imprisoned either with or without hard labour. For a second offence of dog-stealing, the defendant is to be guilty of a misdemeanor, and liable to imprisonment for not exceeding eighteen months, with or without hard labour, and by the general clause in question the Court may impose a fine either in addition to or in lieu of these punishments. Now if the Court under this clause, adjudges imprisonment without hard labour, it is tantamount to adjudging that the offence does not deserve hard labour, and if the Court adjudges a fine in lieu of imprisonment, it is tantamount to adjudging that the offender does not deserve even imprisonment, and to give the Court power to imprison with hard labour for nonpayment of the fine, would be almost equivalent to giving it power, uno flatu, to adjudge the offender not deserving and deserving of hard labour. Nay, more, it would be giving the Court power, after adjudging that the defendant merely deserved to be fined for an indictable offence, to adjudge him to be imprisoned with hard labour for mere nonpayment of money, no criminal offence at all. Mr. Saunders, however, says that “such an anomaly" as not giving the Court power to award hard labour
for nonpayment of a fine imposed for a second offence of dog-stealing, “clearly shows the defectiveness of the section;" and he arrives at this conclusion thus. After stating the punishment for the first offence, he proceeds: “then in default of payment he may, under Jervis's Act, 11 & 12 Vict. c. 43, s. 19, be committed to prison with or without hard labour.” In which short passage there are two misstatements. That section only applies where by the statute in that behalf no mode of enforcing the payment of the penalty is provided. Now sec. 107 of the Larceny Act does provide for enforcing the payment of the penalty for dog-stealing; and consequently Jervis's Act has nothing to do with the
But even if it did apply, a distress warrant must be issued in the first instance, unless its issuing would be ruinous to the defendant, or it appeared that he had no goods. It is therefore incorrect to state generally that the defendant may under that section be committed at all. So that we have both a wrong statute cited, and that statute wrongly stated. It is true that a similar argument might have been founded on sec. 107 of the Larceny Act, but it would be completely answered by what we have said here and in the Introduction.
5. Next, Mr. Saunders said that “the Court will have no authority to take the recognisance of one surety only, since the statute speaks only of sureties." Now the Court of Queen's Bench never takes less than two sureties in any case, and generally four in cases of felony, and with very good reason, for one surety may die, become
olvent, or quit the country; but it is much less likely that two or more sureties should do
Therefore there was an excellent precedent founded on good reason for requiring more than one surety. The Select Committee of the Commons introduced the power to take the offender's own recognisances. Mr. Saunders in reply admits “that the Queen's Bench usually requires two sureties,” but thinks that circumstances may occur, particularly in the case of a young