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to add, that this delay of sentence being a forbearance in favour of the prisoner, whether it be in compliance with his solicitation, or emanate immediately from the court, it would not be compatible with the claims of justice to place the security of his person for receiving the judgment of the law upon a more precarious foundation after verdict, than it was before; and therefore that, in the circumstances under contemplation, some deference is due to the application of the prosecutor, as well as to the opinion of the court, respecting the recognizances by which the liberation of his person may be justified.
At whatever period the judgment of the court is to be Proclamation given, proclamation is to be made three times, as follows, by
to keep silence, the crier of the court.
“O yez, O yez, all manner of persons are commanded sentence to keep silence whilst judgment is given against the prisoner passed. . at the bar, upon pain of imprisonment.” Then the prisoner is placed at the bar, and the sentence * is pronounced by the chairman.
In a book professedly compiled principally for the use of persons who have not been in the habit of considering such kinds of subjects, it may, perhaps, be deemed at least a pardonable piece of presumption in its author, if he throw out a few suggestions on that portion of the justice's public duty, in the exercise of which, the law has left the most to his discretion, with the fewest means of regulating his judgment, viz. the punishment of those offences which are the usual subjects of trials before a court of quarter session. Where statutes have conferred upon individual magistrates, or even upon sessions, the authority of summary convictions, without the intervention of jurors, they have limited the penalties for the offences created, or punished, by them, within narrow generally, but always within prescrilied bounds; while, with respect to fines, imprisonment, and even transportation, they have, of necessity, perhaps, left to them the same latitude of apportionment, as to the judges of the superior courts, although frequently persons without the same professional experience, the same familiar acquaintance with the multiplied inducements to the commission of crimes, or the same means of discrimination respecting the effects of punishment. The present purpose is, therefore, to impress upon the minds of those who are only commencing their career in the public duties of magistracy, not merely the justice and humanity, and therefore the duty, but even the policy also, of exercising the most unprejudiced and temperate discrimination in the
In trials for misdemeanours, indeed, less formality is observed respecting the proclamations, &c. but the essential parts of the proceedings are the same. The jury are charged by the chairman; they return their verdicts, and he passes the sentence of the law, whatever it may be (generally fine and imprisonment, or one of them), in a similar
This stage of the proceedings brings us to a more particular consideration of the various judgments themselves, which are ordinarily inflicted by courts of session of the peace.
distribution of punishments, on account of the salutary consequences which may reasonably be expected from it. The punishments ordained by municipal regulations, may not improperly be designated by the epithets “ admonitory,” “ exemplary," and " vindictive." To discrimis nate further than this might perhaps incur the imputation of fanciful refinement, but thus far it may not be too much to insist. The first suggestions of common sense, and common benevolence, need not wait for the sanction of experiment, for they are to be found in the very rudiments of civilization. To the novice in delinquency, punishment is intended primarily to operate as an individual admonition; and where the heart has not been absolutely depraved, but only the passions excited, or the temerity of youth stimulated by excessive temptation, or the influence of bad example, it will frequently have its due effect, if administered with that moderation, which corrects, without degrading. Nemo repente turpissimus, is an adage, as true in point of fact, as ne. cessary to be kept in mind by those, whose rank and duties call upon them to mark with precision of punishment, the deviation of ignorance and frailty from the path of rectitude. On a repetition of offences, where it is ascertained, indeed, that admonition has failed to correct, to deter, by making the culprit an example, becomes a duty to society : for compassion to the individual may then well give way to the general protection of the social system. Nevertheless, till amendment has become entirely hopeless, the severity of punishment should be short of that which cuts off all retreat from an association with the vicious. The third, and last, stage of depravity is that alone in which moderation inay cease to be considered as an attribute of justice. In that extremity, society has an ample right to manifest its resentment; and the administrators of its laws are justified in becoming the ministers of its wrath ; because cutting off (by removal or disgrace) the morbid member from the general body, becomes the only method of preventing the communication of contagion.
It is to be collected, from many parts of the preceding pages, that for misdemeanours of all kinds, as well those of in misdemeacommon law, as by statutes, fines and imprisonment, either separately, or conjointly, are the usual punishments; by the common law and by some statutes, to be inflicted, at the discretion of the courts before whom the trial shall take place; by other statutes subject to certain limitations therein respectively specified. The place of imprisonment is now always in some house of correction, or gaol, of the county wherein the offender has been convicted.* In former times, this imprisonment was frequently directed to be partly in stocks, or in pillory. The former of these modes is fallen into disuse (except in some instances of summary convictions before magistrates out of court, where it is not only the specific, but the only punishment directed by statute), and the latter is recently abrogated, + except in instances of perjury, and suhornation thereof. Of specific imprisonments by statute it is not necessary to advance any thing; but of those which are said to be discretionary, it may be right to observe, that the discretion intended is not an arbitrary and capricious discretion, but measured by the nature of the offence; the sex, age, and other circumstances of the offender; and the balance of public benefit to be derived from the exposure of the criminal, and the notoriety of his punishment; or from the silence dictated by decency respecting the nature of the offence, and contemptuous oblivion of the offender. When the crime is of a description to threaten the public peace with disorder, as in the case of aggravated assaults, riots, libels, and such like offences; or the public morals with subversion, as in that of keeping a house of ill fame; it is usual to add, to fine and imprisonment, a requisition of sureties for the future good behaviour of the offender, for a longer, or a shorter period, in pro
Imprisonment in penitentiary houses, or in hulks, as a commutation for transportation, and that not by the judgment of the courts, but by the authority of the government, is not within our present contemplation. † 56 Geo. 3. c. 133.
portion to the apparent danger of repetition, and the con
trition of the party. In felonies.
The inferior species of felonies, such as are ordinarily tried at sessions of the peace, are, by a numerous succession of statutes, * made punishable by fine, imprisonment, and whipping; or by one, or more of them; or by transportation
for seven years. Transporta- A few words on the subject of transportation shall close tion.
Transportation was unknown to the common law, and introduced by statute only, about the end of Queen Elizabeth's reign, and continued for the purpose of colonizing newly discovered or conquered settlements. It is now confined to three cases, 1st, voluntary, under a stat. of Geo. 1. 2ndly, by way of commutation, to escape a more severe punishment, and therefore, to a certain degree, voluntary;
3dly, by force of some modern statute, as a specific punishVoluntary. ment of some particular offence. Voluntary transportation
is, “ where any person of the age of fifteen years and under twenty-one, shall be willing to be transported, and enter into any service in any of his Majesty's plantations in America, it shall be lawful for any merchant, or other, to contract with him for such service, not exceeding eight years; provided such person binding himself, come before the Lord Mayor of London, or some other justice of the city, if such contract be made there, or before two justices of peace of the place where such contract shall be made, and acknowledge his consent, and sign such contract in their presence, and with their approbation ; and such merchant or other may transport such person, and keep him in any of the plantations, according to such contract; which contract and approbation of such magistrate shall be certified by such magistrate at the next quarter session, to be
registered by the clerk of the peace, without fee.”+ As a commuta- Transportation, as a commutation for a more severe pution in offences nishment is, “where any person shall be convicted of grand within clergy.
or petit larceny, or feloniously stealing of money or goods, and who by law shall be entitled to the benefit of clergy, and liable only to burning in the hand or whipping (except persons convicted for receiving or buying stolen goods, knowing them to be stolen), it shall be lawful for the court before whom they were convicted, or any court held at the same place with like authority, (or any subsequent court, held with like authority, for the same county, &c. though held at another place,) instead of ordering such offenders to be burnt in the hand or whipped, to order that they be sent to some of his Majesty's plantations in America for seven years, and such court shall have power to transfer such offenders, by order of court, to the use of any person and their assigns who shall contract for their performance of such transportation for seven years. And where any per- For offences sons shall be convicted of any crimes, for which they are ex
clergy. cluded the benefit of clergy, and his Majesty shall extend mercy to such offenders on condition of transportation, and, such intention of mercy be signified by one of the principal secretaries of state, it shall be lawful for any court, having proper authority, to allow such offenders the benefit of a pardon, and to order the like transfer to any person (who will contract for such transportation) and to his assigns, of any such offenders, as also of any person convicted of receiving stolen goods, knowing them to be stolen, for fourteen years, if such condition of transportation be general, or else for such other term as shall be made part of such condition ; and the persons contracting or their assigns, shall, by virtue of such order of transfer, have a property in the service of such offenders for such term of years.
These provisions have been amended by many subsequent statutes, but this of Geo. 1. remains the foundation of all modern transportation. The first of these amendments was
4 Geo. 1. c. 11. and 3 Geo. 3. c. 23 ; which act, last referred to, was, by the 24 Geo. 3.c. 56. altered and amended, in many particulars, especially in protecting the persons conveying the transports to the port of embarkation, in allowing a property in their service, to be assigned 10 contractors for them, without giving security for transportation, &c.