taken was that "the hands of the Court were fettered for no practical advantage." It is sufficient to rejoin that, practically, the hands of the Court are not fettered at all; for the Court may impose a nominal fine, or require recognisances for a nominal term.

3. Mr. Saunders said, "as regards the fine itself, the section makes no provision in the event of its not being paid. Suppose the fine is not paid, what is to be done with the offender? Is he to be committed to gaol in default? What authority is there for this? And if committed, or how long? and if for a time certain, is it to be with or without hard labour? These are

difficulties which the framers of the section have evidently not foreseen, and most certainly have not provided for." The answer is, all these supposed difficulties have no existence whatever. When an offender is convicted and receives judgment, he is in the custody of the sheriff, and the question is not whether he is to be committed to prison, for he is actually in prison, but how he is to get out of prison; and the only means by which he can lawfully get out of prison, is by doing and suffering whatever the Court may lawfully adjudge him to do or to suffer.

It is a general rule, also, that when a statute creates a new felony or misdemeanor, all the common law incidents are impliedly attached to it. Where, therefore, a statute creates a misdemeanor, it at once is liable to the common law punishments for misdemeanor, of which fine and sureties of the peace, and imprisonment in default of paying the one or finding the other, are part. So where a statute creates an offence and specifies its punishment, that punishment is to be carried into execution according to the course of the common law. Thus, wherever a statute creates a capital felony, the offender may be sentenced and executed according to the course of the common law. So, where a statute authorises the Court to impose a fine, the offender may be imprisoned according to the course of the common law till the fine is paid. For, as

nd there is no provision in default of payment. t would be waste of time to refer to other like nactments on a point so perfectly clear.

All the preceding observations, except those ounded on the 9 Geo. 4, c. 31, and 5 & 6 Vict. - 96, apply equally to detaining an offender in rison till he finds sureties. But one precedent a point may be added. The 37 Geo. 3, c. 126, 4, makes every person uttering foreign coin able to six months' imprisonment and to find ureties for good behaviour for six months after he end of such imprisonment, and in case of a econd conviction sureties are required for two ears; but no power of commitment is given in ther 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 ersons charged with felony, "authority to bind ll such by recognisance as do declare anything material to prove" the felony, and contained no rovision as to what was to be done if the witness efused to be bound. Now, in Bennett v. Waton, 3 Maule & S. 1 (a), it was held that under

a) Fully approved of in Evans v. Rees, 12 Ad. & E. 55.

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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' expo

sition 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 1st 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