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person, where one surety (the parent) need alone be required.” We reply that the admitted practice, invariably followed from time immemorial by the Court of Queen's Bench, was an infinitely better guide to follow than any other.
Lastly, Mr. Saunders said that the proviso, which was introduced by the Committee of the Commons, “means that if any person is required to find sureties for more than a year, he shall not be imprisoned for not doing it.” According to this reading every person required to find sureties for a less term than a year would be liable to be imprisoned for life unless he found them: whilst a person required to find them for more than a year would not be liable to be impri
ned at all. The objector, therefore, may well admit that that cannot be the intention of the section. The Committee of the Commons thought that the clause clearly meant that no one was to be imprisoned for more than a year for not finding sureties. They framed it, and they are at least as competent as the objector to understand its meaning.
In reply Mr. Saunders says, that Mr. Greaves admits that the meaning of the Legislature was “that no person shall be imprisoned under this clause for any period exceeding one year for not finding sureties. That being so, we will only add, that it is very much to be regretted that the British Legislature has not said what it meant, instead of saying what it did not mean.” But has it done so ? The words are, “No person shall be imprisoned under this clause for not finding sureties for any period exceeding one year," and the objection rests on reading "sure
together with “for any period exceeding one year.” Now “sureties to keep the peace or to be of good behaviour for any term,” is a perfectly well known expression ; but “sureties for any period” is a very unusual, if not an altogether unknown expression, and it therefore ought not to be supposed to be used in any case, especially where it makes nonsense of a sentence. Again, in pronouncing sentence
nothing is more common than to insert the cause of imprisonment between the word “imprisoned
and the term of imprisonment awarded, e.g. “The sentence of the Court, is that you be imprisoned for this your offence for the term of one year, and if the clause be so read it is perfectly free from objection. If the clause had run "imprisoned for not paying a fine for any period exceeding one year," no doubt would have existed as to its meaning, and there is equally little as to the meaning of the clause as it stands ; for where a clause is capable of being read in two ways, one of which leads to a manifest absurdity, and the other makes perfectly good sense, it is obvious that the latter is the right reading.
We said, and repeat, that there was nothing whatever in any one of these numerous objections, and unquestionably nothing to justify a writer in saying that the clause was “so slovenly drawn;" “it is astonishing that a section so loose as this one should have been permitted to have found its way into this Act;" "taken altogether this section is a most unfavourable specimen of legal workmanship, and will cause very great embarrassments to those whose duty it will be to carry it into effect."
Not satisfied, however, with "attacking" this clause in the Law Times, Mr. Saunders returns to the charge in his and Mr. Cox's edition of The Statutes, p. 97, where he starts the additional objection, that “the section contains new and very extensive powers.” Surely Mr. Saunders cannot but know that the power to fine and require sureties for keeping the peace and being of good behaviour on a conviction for misdemeanor is one of the oldest powers. known to the common law. Then Mr. Saunders says, “it may well be questioned whether when a criminal has suffered his appointed punishment, it is judicious to impose upon him the further inconvenience of providing bondsmen for his future good behaviour.” It would be enough to answer that such has been the case in common
law misdemeanors from time immemorial, and no one ever heard a complaint against it; but it may be well to add, that neither fines nor sureties are ever awarded “when a criminal has suffered his appointed punishment;" on the contrary, the Court always considers them as part of the punishment, and this power is always used in mercy towards the criminal, and a less term of imprisonment awarded where it is exercised. In fact, instead of the clause being open to this objection, it is a most humane and merciful provision founded on that “ nursing mother," the common law.
Mr. Saunders again returns to the charge, p. 244, with the further objection that this clause “in effect amounts to a bestowal of unlimited powers of mitigation of punishment, and when we find that unlawfully and maliciously wounding, &c., &c., are all misdemeanors, the powers thus given to impose a fine in lieu of any other punishment, looks very like jesting with criminal punishment.” This is a note to sec. 71, of the Offences against the Person Act. Had Mr. Saunders forgotten that by sec. 5 of the same Act any person convicted of manslaughter (a crime infinitely greater in many cases than any misdemeanor) may be sentenced to pay a fine either in addition to or without any other punishment ? So under the 9 Geo. 4, c. 31, s. 9, the Court might have awarded a fine on a conviction for manslaughter without any other punishment.
ACCESSORIES AND ABETTORS.
24 & 25 VICT, c. XCIV. An Act to consolidate and amend the Statute Law
of England and Ireland relating to Accessories to and Abettors of Indictable Offences.
[6th August, 1861.] THEREAS it is expedient to consolidate and
relating to accessories to and abettors of indictable offences : Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
As to accessories before the fact : Accessories 1. Whosoever shall become an accessory before before the the fact to any felony, whether the same be a felony fact may be tried and
at common law or by virtue of any Act passed or punished to be passed, may be indicted, tried, convicted, and as princi- punished in all respects as if he were a principal pals.
Note. This clause is taken from the 11 & 12 Vict. c. 46, s. 1, upon which it was held, that it was no objection to an accessory before the fact being convicted that his principal had been acquitted. Hall and Hughes were jointly indicted for stealing certain cotton. Hall was acquitted and called as a witness against Hughes; and it clearly appeared that Hall had stolen the cotton at the instigation of Hughes, and in his absence. It was contended, that as Hall had been acquitted, Hughes must be so also; for the statute had only altered the form of pleading, and not the law, as to accessories before the fact; but it was held, that the statute had made the offence of the accessory before the fact a substantive felony, and that the old law which made the conviction of the principal a condition precedent to the conviction of the accessory, was done away by that enactment, Reg. v. Hughes, Bell, C. C. 242.
In every case where there may be a doubt whether a person be a principal or accessory before the fact, it may be advisable to prefer the indictment under this section, as such an indictment will be sufficient, whether it turn out on the evidence that such person was a principal or accessory before the fact, as well as where it is clear that he was either the one or the other, but it is uncertain which he was.
It may be well to observe, however, that there are cases in which it is not clear that an indictment under this section would suffice. Suppose for instance that the offence of the principal be local; e. 9., a burglary committed in the county of Worcester, and that the accessory is indicted in the county of Stafford on the ground that the evidence shows that the acts, by which he became accessory were done in the latter county, it may be questionable whether the accessory could be indicted and tried under this section in that county ; for it only authorises the accessory to be indicted and tried “ as if he were a principal felon," and the principal could only be indicted and tried in Worcestershire. Possibly if such an objection were taken on the trial, it might be held that s. 7 of this Act authorised the indictment and trial in Staffordshire on the ground that the evidence showed the party to have become an accessory before the fact in that county. But supposing that to be so, the same question might be raised in arrest of judgment or on error, and on the face of the record all that would appear would