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(even in Henry the second's time (9); and means only that no man shall have a larger amercement imposed upon him than his circumstances or estate will bear; saving to the landowner his contenement or land (r); to the trader his merchandize : 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 (s) by the assessment or affeerment of the coroner, a sworn officer chosen by the neighbourhood, under the equity of the statute of Westm. 1, c. 18; and then the judges estreated the amount into the Exchequer (t). 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 to, or person not being an officer of, the court (u), it was then denominated a fine ; and the antient practice was, when any such fine was imposed, to inquire by a jury, “quantum inde regi dare valeat per annum, salvâ sustentatione suâ, et uxoris, et
" that con
(9) Glanv. b. 9, c. 8, s. 11.
(r) Lord Coke says, “ tenement signifieth his counte
nance, as the armour of a soldier “ is his countenance, the books of “ a scholar his countenance, and the “ like.”—(2 Inst. 28.) He adds, that “the wainagium is the conn“ tenance of the villain; and it was
great reason to save his wainage, “ for otherwise the miserable crea“ ture was to carry the burthen on “ his back.”
(8) In the court leet and court baron it was performed by affcerors,
or suitors sworn to affeere ; that is, tax and moderate the general amercement, according to the particular circumstances of the offence and the offender. The affeeror's oath is conceived in the very terms of Magna Charta. As to which, Blackstone (vol. iv. p. 380) cites Fitz, Survey,
(t) F. N. B. 76.
(u) 8 Rep. 40. The words of Blackstone are-_"a stranger, not “ being party to any suit"-(4 BI. Com. 380); but Lord Coke says,
a stranger to the court."
[liberorum suorum”(x). 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 (y); according to an antient maxim, qui non habet in crumena luat in corpore. Yet, where any statute speaks both of fine and ransom, it is holden that the ransom shall be treble the fine at least (2).]
As to imprisonment (a), its measure, when imposed under modern Acts of parliament as a punishment for crime, is now usually limited so as not to exceed two years (6); and, in connection with it, the sentence frequently inflicts the additional severity of solitary confinement, or of hard labour, or both, according to the nature
(x) Gilb. Excheq. c. 5.
(y) Mirrour, c. 5, s. 3; Lamb. Eirenarch. 575.
() Norton's case, Dyer, 232.
(a) It may be observed, that of. fenders under the age of sixteen, convicted before any court, magistrate, or justice of the peace, and whose sentence shall include imprisonment for, at the least, ten days,-may be ordered to be detained, after the period of imprisonment, in a certified reformatory school for not less than two nor more than five years; but if the offender be under the age of ten, he must have been previously charged with some offence punishable with penal servitude, or imprisonment, or
be sentenced by a judge of assize or court of general or quarter sessions. (As to these schools, see 29 & 30 Vict, c. 117.) Sec also 25 & 26 Vict. c. 44, and 28 & 29 Vict. c. 126, ss. 41-43, enabling the visiting justices of gaols to direct pecuniary relief, in certain cases, to be afforded to prisoners on leaving prison, either directly or through the medium of a certified Prisoners' did Society.
(6) See 24 & 25 Vict. cc. 96, 97, 98, 99, 100, passim. By some earlier statutes, however, still unrepealed, the periods of imprisonment authorized for offences ander their provisions are sometimes three and even four years.
of the case (c). But the 7 Will. IV. & 1 Vict. c. 90, s. 5, contains a general provision, that it shall not be lawful to direct an offender to be kept in solitary confinement for any longer period than one month at a time, or than three months in the space of one year; and a similar limitation is inserted in each of the Criminal Consolidation Acts of 1861 (viz. 24 & 25 Vict. cc. 96, 97, 98, 99, 100), in reference to the offences punishable under those statutes respectively. As to hard labour, regulations respecting its nature and severity have been made, under which it is divided into two classes; one for the employment of males above the age of sixteen, the other of males below that age and of females (d).
As to whipping, the offender, under such modern Acts of parliament as authorize this punishment, may be directed to be whipped in addition to any imprisonment awarded. By 1 Geo. IV. c. 57, however, judgment shall in no case be given that any female convicted of any offence shall be whipped either publicly or privately: and in cases where the whipping of female offenders had, before that Act, formed either a part or the whole of the sentence,—the court or justice of the peace is empowered to pass sentence of confinement with hard labour in the common gaol or house of correction, for any time not exceeding six months, nor less than one month; (or of solitary confinement therein, for any space not exceeding seven days at any one time;) in lieu of the sentence of being publicly or privately whipped. Moreover, by the Criminal Consolidation Acts of 1861, already so often referred to, the addition of whipping by them authorized in
(c) The punishment of hard la- ment. (See 24 & 25 Vict. cc. 96, 97, bour is said to have been first in- 98, 99, 100, passim.) troduced by 5 Ann. c. 6. (See R. (d) See 28 & 29 Vict. c. 126, s. v. Baker, 7 A. & E. 502.) Hard 19, and Part iv. sched. I, reg. 34labour may now be added, in most
38. cases, to the sentence of imprison
reference to a variety of the offences therein mentioned, is uniformly confined to males below the age of sixteen (e); and the whipping is to be in private and only to be inflicted once; and the number of strokes and the instrument with which they are to be inflicted are to be specified by the court in the sentence. And a similar provision is made by 25 & 26 Vict. c. 18, in reference to this punishment when awarded by a justice or justices in the exercise of his or their summary jurisdiction,-with the addition, that in case of an offender whose age does not exceed fourteen years, the number of strokes inflicted shall not exceed twelve, and the instrument used shall be a birch rod. On the other hand, when the sentence of whipping is inflicted under the 26 & 27 Vict. c. 44, an Act passed in the year 1863 "for the further security of the persons of her Majesty's subjects from personal violence”(f), the punishment may be ordered to be repeated twice,
even thrice; and there is no limitation whatever as to the age of the offender; though if his age does not exceed sixteen, the number of strokes at each infliction is not to exceed twenty-five, and to be with a birch rod; and in the case of older offenders the number of strokes, at each whipping, is not to exceed fifty. Moreover, in every case, the sentence is to specify the number of strokes and the instrument to be used. And no whipping is to take place after the expiration of six months from the passing of the sentence.
As to penal servitude, this is a sentence which has been now introduced in substitution for that of transportation beyond the seas (9). The principal statute in
(e) See 24 & 25 Vict. cc. 96, 97, 82, 128. 98, 99, 100, passim. In one instance (9) Transportation is said (Barr. (24 & 25 Vict. c. 96, s. 101), the age on Statutes, 352) to have been first mentioned is eighteen; but this is inflicted as a punishment by 39 probably a clerical error.
Eliz, c. t. As to its history, see R. (1) As to this Act, vide sup. pp. v. Baker, 7 A. & E. 502; Bullock VOL. IV.
reference to such transportation is the 5 Geo. IV. c. 84, by which the law on that subject was revised and consolidated in the year 1824 (h). Under that Act, the sovereign was enabled to appoint places beyond the seas, either within or without the dominions of the Crown, to which offenders under sentence of transportation might be conveyed and kept to hard labour; and also places, in England or Wales, for their confinement until transported or discharged, or otherwise disposed of by the secretary of state. But great difficulty having arisen, of late years, in finding colonies willing to receive transported convicts, it became gradually the practice, as to certain classes of convicts who had been sentenced to transportation, to detain them in the mother-country for the whole period of their term of punishment; and it was ultimately thought expedient to abolish the sentence of “transportation” altogether, and to substitute for it that of “penal servitude,” under which convicts may be subjected to such confinement and discipline (either at home or abroad) as shall be found practicable and desirable (i).
This change was accordingly carried into effect by the “Penal Servitude Acts,” that is to say, by 16 & 17 Vict. c. 99, and 20 & 21 Vict. c. 3; the latter of which Acts, after providing that no person shall for the future be sentenced to transportation, enacts that any persons who, if those Acts had not passed, might have been so sentenced, shall be liable to be sentenced to be kept in penal servitude for a term of the same duration; and further, that any person who might have been sentenced either to trans
v. Dodds, 2 B. & Ald. 262, 267; Vict. c. 67; 16 & 17 Vict. c. 99, s. Whitehead v. The Queen, 7 Q. B. 7; 20 & 21 Vict. c. 3; 22 Vict. c. 25. 532.
(i) See the Evidence of Mr. (h) This Act is amended by 6 Waddington, before the select comGeo. 4, c. 69; 11 Geo. 4 & 1 Will. 4, mittee of the House of Commons, c. 39; 2 & 3 Will. 4, c. 62; 4 & 5 on Transportation. (Second Report, Will. 4, c. 65; 7 Will. 4 & 1 Vict. p. 3.) c. 90; 6 & 7 Vict. c. 7; 10 & 11