hence, that any argument as to a difference in the intention of the legislature, which may be drawn from a difference in the terms of one clause from those in another, will be entitled to no weight in the construction of such clauses; for that argument can only apply with force where an Act is framed from beginning to end with one and the same view, and with the intention of making it thoroughly consistent throughout.

وو

A single instance will well explain my meaning. In s. 18 of the Offences against the Person Act, post, p. 52, we have wounding "with intent to resist or prevent the lawful apprehension or detainer of any person.' In s. 38 of the same Act, post, p. 65, we have assault "with intent to resist or prevent the lawful apprehension or detainer of himself or any other person." On which difference in the terms used if any argument were founded, the answer would be, that the words in s. 18 are the very words of the 7 Will. 4 & 1 Vict. c. 85, s. 4, and those in s. 38 are the words of the 9 Geo. 4, c. 31, s. 25 (except that "himself" is substituted for "the party so assaulting"); and it is clear that the construction of both these clauses in this Act ought to be the same; for the 7 Will. 4 & 1 Vict. c. 85, s. 4, is a re-enactment of the 9 Geo. 4, c. 31, s. 12, and the words "any person" are substituted in the former for "the party so offending or any of his accomplices," "any" being used in the former in its widest sense, as comprehending every person.

any dwelling house

Wiltshire v. Willett 11 CB (RS) 240

GENERAL CLAUSES IN THE ACTS.

THERE are certain clauses as to hard labour, solitary confinement, whipping, fines, and sureties for the peace, which are generally applicable to most of the provisions in the Acts, and may be most conveniently placed together before the Acts, and referred to in the parts of the Acts to which they apply. They are as follows:

Whenever imprisonment, with or without hard Hard labour, may be awarded for any indictable offence labour. under any of the Acts, the Court may sentence the offender to be imprisoned, or to be imprisoned and kept to hard labour, in the common gaol or house of

correction.

for

Note. This provision is founded on the similar provisions contained in the 7 & 8 Geo. 4, c. 29; 7 & 8 Geo. 4, c. 30, &c.

ment.

Whenever solitary confinement may be awarded Solitary any indictable offence under any of the Acts, the confineCourt may direct the offender to be kept in solitary confinement for any portion or portions of his imprisonment, or of his imprisonment with hard labour, not exceeding one month at any one time, and not exceeding three months in any one year.

Note. This clause represents the previously existing law as fixed by the 7 Will. 4 & 1 Vict. c. 90, s. 5.

Whipping.

Fines and

the Peace.

Whenever whipping may be awarded for any indictable offence under any of the Acts, the Court may sentence the offender to be once privately whipped; and the number of strokes, and the instrument with which they shall be inflicted, shall be specified by the Court in the sentence.

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Note. This clause alters the law in several respects; it limits the whipping to once, instead of once, twice or thrice; and it abolishes whipping publicly; it also makes it incumbent on the Court to specify in the sentence the number of strokes, and the instrument with which they are to be inflicted.

Whenever any person shall be convicted of any Sureties for indictable misdemeanor punishable under any of the Acts, the Court may, if it shall think fit, in addition to or in lieu of any of the punishments by that Act authorised, fine the offender, and require him to enter into his own recognisances, and to find sureties, both or either, for keeping the peace and being of good behaviour; and in case of any felony punishable under any of the Acts, the Court may, if it shall think fit, require the offender to enter into his own recognisances, and to find sureties, both or either, for keeping the peace, in addition to any punishment by that Act authorised: Provided that no person shall be imprisoned under this clause for not finding sureties for any period exceeding on

year.

Note. This is a new enactment.

A fine is at common law one of the punish ments for a misdemeanor, and by this claus the Court may, in addition to, or in lieu of, any of the punishments assigned to any misde meanor by these acts, fine the offender. I may be as well to observe that a fine ought no to be imposed on a married woman, because i presumption of law she has no property where

with to pay it. Rex v. Thomas, Rep. T. Hard. 278.

In all cases of misdemeanor the Court might by the common law add to the sentence of imprisonment, by ordering the defendant to find security for his good behaviour and for keeping the peace, and might order him to be imprisoned until such security were found. Rey. v. Dunn, 12 Q. B. 1026; but as this power was not generally known, it was thought better to insert it in this clause.

As it sometimes happens in cases of felony, that it may be expedient to require sureties for keeping the peace after the expiration of any imprisonment awarded, this clause empowers the Court to require such sureties. It is easy to see that it may frequently be highly advisable to pass a very short sentence of imprisonment on a youth, and to direct him to be delivered to his friends on their entering into the proper recognisances. And it may be well worth making the experiment whether requiring adults to find such sureties may not prove beneficial. The great difficulty with which convicts have to contend immediately after their discharge, is the want of some check that may tend to prevent them from relapsing into their former habits; and the knowledge that their sureties would be liable to forfeit their recognisances might, and probably would, in some cases at least, operate as a check upon their conduct. In cases of assault and other breaches of the peace, it has been found highly beneficial to require the parties to find sureties for their future good behaviour; and this leads to the hope that even in cases of felony a similar result. may follow from requiring sureties for keeping the peace, especially where the felony has been accompanied by any personal violence.

As an attack was made by Mr. Saunders in the Law Times of the 21st of September last on these clauses, which might, peradventure, cause some magistrates, who had not had a professional education, to doubt, we answered that attack in

the Addenda to the first edition, and as a reply to that answer was made by Mr. Saunders in the Law Times of the 30th November last, we shall answer that reply here. In order to render the matters plain, we will first state the objections raised, then our answers, then the reply, if any, to them; and, lastly, our answers to that reply.

1. Mr. Saunders asserted that the difficulties of these clauses were "of so formidable a character as to render it exceedingly dangerous for any magistrate to encounter them." Now, the power conferred by these clauses is only conferred on Courts which try criminals by indictment; and if there be any point of law peculiarly clear, it is that no action will lie against any of the members of such a Court for any error in any judgment pronounced by that Court. The Courts of Quarter Sessions, therefore, may act on these clauses with the most perfect safety. To this answer no reply has been given, and no doubt for the best possible reason, viz., that it admitted of none.

2. Mr. Saunders said, "it is difficult to understand why the infliction of a fine should be inflexibly associated with the entering into recognisances to keep the peace," and vice versa. As the clause was originally framed, the Court might either impose a fine on the offender, or require him to find sureties; but the Select Committee of the Commons altered the clause in that respect. Nor is there the slightest difficulty occasioned by the alteration. The fine may be as low, and the recognisances for as short a time, and in as small an amount as the Court thinks fit; and, consequently, the Court may in any case, if it think fit, impose a nominal fine on the offender, and require him to find sureties in a large amount; or the Court may, if it think fit, impose a heavy fine on the offender, and take his own recognisances alone in a small sum and for a short term. So that the alteration made by the Select Committee of the Commons can cause no practical difficulty whatever. To this answer Mr. Saunders replied, that the objection