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solitary imprisonment, in the discretion of the court, from one to twelve weeks, or until the costs be paid.
RULES FOR THE ADMINISTRATION OF JUSTICE.
A careful digest of all the rules necessary for the administration of justice, including a copious illustration of points of law, ought to be settled and published by authority. It ought to be so comprehensive as to anticipate and provide for all cases that occur in practice; and, consistently with this requisite, to be as simple and general as possible, so as to produce an uniform and permanent system of practice throughout the country. The author is sensible that the following propositions fall infinitely short of what is necessary to be done under this head; some leading principles of presumed utility are submitted, but the details can only be supplied with success, by persons of long experience in judicial proceedings.
Persons are generally recognised in these propositions, in the masculine gender, and the singular number only; but the expression is to be taken to include the feminine gender and the plural number, when necessary. This understanding will save a multitude of words, and perhaps some mistakes. For instance, -the last Insolvent Debtor's Act, in its instructions to the Magistracy, says, " such Justice or Justices shall by his, her, or their own view," &c.: here the multiplication of words seems to have led to mistake rather than to certainty; unless, indeed, it is intended to provide for the possibility of an old woman being put into the commission of the peace.
33. There can be no crime or offence where there is no volition. -An insane person, idiot, or infant, or person constrained by a force which he has not the power to resist, cannot be convicted of a crime or offence.'
34. No citizen shall, for any purpose, be punished or deemed guilty of a crime, unless a legal conviction has established the fact.
35. No citizen shall be arraigned for an infraction of a law, which was not made until after the commission of his imputed crime or offence.
All infractions of the law are offences, but the appellation crimes is limited to offences of dishonesty, (excepting the withholding of another's property,) offences against and in the administration of justice, and such of the offences under the heads Lust and Malice, as exceed "solicitation of chastity" and "rout."
36. Sessions of Justice shall be holden quarterly or monthly, when all persons detained under accusation of crimes or offences shall be entitled to claim their trial, or to be acquitted of the charges on which they are detained. Provided, that upon satisfactory proof of the unavoidable absence of a material witness, for the production of whom due diligence has been used, or of want of time for preparation by the accused, trial may be postponed to the next sessions.
37. No citizen shall be detained in prison or under arrest, longer than the period necessary to bring him to trial, or than the term of his sentence.
38. No person shall be tried twice for an offence, unless at his own desire, or upon appeal from a trial by a single Magistrate.
39. The trial of an accused person shall not be removed from the Township or County where the offence is alleged to have been committed, unless upon his own application and the consent of the court, or upon the county being declared by the Magistrates in session to be in a state of disturbance. It may then be removed to the nearest township or county which is free from disturbance.
40. No fees shall be taken in court but such as are legally authorized, of which a conspicuous list shall be hung up in court.
A conspicuous list of the causes set down for trial, shall also be hung up in court. The trials shall come on in regular successive order, unless strong reasons are shewn to the contrary. If prosecutors are not prepared when called on, their causes shall be removed to the bottom of the list. The causes on the list shall be struck off as they are disposed of.
41. Upon the prosecution of a man-the offence he is charged with, and the time when, and the place where he committed it, are to be clearly set forth in a Bill of Indictment, which with the verdict (and sentence if any,) thereon, is to be filed by the Magistrate or Court who try the cause.
42. A copy of the Indictment, and a list of the witnesses intended to be called in support of it, with their residences and occupations, are to be served on the accused, a sufficient time before his trial for enquiries to be made into the witnesses' character.
43. When several persons are included in one Indictment, the list of witnesses applicable to each shall be distinguished.
44. A misnomer or clerical mistake in an Indictment is not to vitiate it, unless it is shown that the error alters the nature of the offence charged, or is calculated substantially to prejudice the accused.
45. An indictment may be quashed for want of clearness in description, a gross redundancy of words, or an unreasonable extent in the list of witnesses. No costs shall be allowed to attorneys for unnecessary verbiage, nor to suitors for the expenses of unnecessary witnesses.
46. In all trials, admissions of undisputed facts ought to be asked for and granted, as well to save the time of the court as to avoid needless expenses in bringing up witnesses; and witnesses dwelling at a distance ought to be examined by a commission on the spot, unless the importance or nature of their testimony render their examination in court expedient.
47. If it be satisfactorily shewn by petition to any Judge, that a person is unjustly held in confinement by another, the Judge is by his warrant to direct the party complained against, to produce the body of the prisoner in court or before him, with the cause of his caption and detention. When the Judge may direct the detained person to be set at liberty, or if a wife, apprentice, infant, ward, idiot, or lunatic, may direct into whose hands the aetained shall be delivered for custody.
48. If the attendance of a person in legal confinement be proved to be necessary on any trial, the Judge is to issue his warrant to the gaoler to produce the body of his prisoner in court or before him.
49. In all cases of crimes and offences, the misdoer, if convicted, is to restore to the owner the property, if any, which he wrongfully holds, and he is answerable to all whom he has injured for the pecuniary value, if any, of the damage consequent on what he has done, and the full costs and expenses of prosecution. All the property he possessed when legally charged with his offence, shall be liable to pay costs and damages, and no subsequent assignment thereof shall be effectual against such liability, unless the payment of an adequate valuable consideration, and total want of knowledge (in the purchaser) of the charge against the misdoer is satisfactorily proved.
Restitution due to a prosecutor, and costs and damages incurred by him, are on conviction to be ascertained and settled by an officer of the court, subject to appeal to the court, and are to be delivered or paid by the offender, as a consequence of his conviction, without any further order.
50. In default of payment of restitution, costs, damages, and fines, the convict's property of every kind may be seized, and sold to defray the same; and his person committed to the House of Detention, or of Correction, from session to session, not exceeding the space of one year, in the discretion
of the court. The imprisonment, however, to be ended, on such payment being made.
51. If a fine be awarded concurrently with restitution, costs, or damages, and the property of the convict be insufficient-first restitution, then cosis, and next, damages, shall have precedence in payment, before the fine.
52. If the convict be unable to pay the costs of prosecution, the prosecutor and witnesses are to be indemnified by the township, or county.
53. All individuals condemned as joint parties to a crime or offence, shall be jointly and severally liable to the payment of the restitution, costs, damages, and fine incurred.
54. Any person injuring the property of another, whether from malice, carelessness, or accident, is answerable as a debtor to the owner, for the damage done, (excepting always damage done to property in the performance of a graiuitous service to the owner) and if there be an account between the parties, the sufferer may charge the damage as a set off, or as an item in his account.
55. To add to the certainty of punishment, and to give effect to the laws, when an offender's abode is unknown, it is necessary that no opportunity of apprehending him should be missed. In our Metropolitan Paving, and other local acts, any one may take an offender against the regulations of those acts into custody, and require the aid of others on the occasion. Even respectable householders may be dragged from their doors to confinement, by any vagabond who is passing; although the offence consists only in rolling a cask from such householder's warehouse, to his cart, over the pavement, or putting any matter or thing upon, or over the pavement; but we do not find that the power given (in such cases most unreasonably) is ever abused. Any one may also seize a man who is breaking the peace, if taken in the act, but not afterwards. It is proposed to extend this power according to the following rule:
On the commission of any crime or offence, where the usual abode of the accused is unknown, and the delay incident to procuring a Magistrate's warrant, and an officer to serve it, might cause bis escape, he may be taken into custody by any housekeeper of good fame, who gives him the particulars of his name, occupation, and residence; provided, that if such taking into custody appears to have been done on any malicious, corrupt, or wanion motive, the taker shall be severely punished by fine and imprisonment; or if in any way
erroneously, he shall make ample compensation to the person so taken into custody.
56. When it appears that specific powers are not provided, to carry legal provisions into effect, such powers shall be taken to be vested in the Magistrates in the quarter sessions assembled, and be executed under their direction.
57. Attempts to commit crimes or offences which have been put in action, but which are stopt short of consummation by ⚫ discovery or impediment, and not by the altered mind of the misdoers, are to be punished with the minimum of the penalty affixed to the crime or offence; or, where the penalty is death, to transportation for life.
58. During the term of solitary imprisonment, a committee shall be appointed to manage the estate (if any) of the convict, and account for the same to parties having legal demands thereon, and to the convict, at the expiration of his term of confinement.
59. Aliment to wife and children is to be allowed by the committee of a convict's estate, if sufficient for the purpose, during the term of his solitary imprisonment.
60. No Magistrate shall act judicially in a cause wherein he is personally and particularly interested, or likely to be influenced by, or unfairly prejudiced against any party in the
61. All fines shall be paid into the Public Exchequer, unless where the contrary is ordered.
ON THE INSTRUMENTS OF PUNISHMENT.
62. FINE is the mildest instrument of punishment, and is adapted for simply disorderly offences, which are free from any malicious or dishonest intention. Pecuniary fines, to operate justly, ought to have reference to the offender's circumstances; a fine of twenty shillings might ruin a laboring man and his family, but only serve for a joke with a rich man. It is therefore proposed, to mulct all offenders a given part of their yearly income. The assessment to be made by an officer of the court, upon the income of the current year, or upon an average of three years' income in the choice of the offender, and subject to an appeal to the court. All the effects of a convicted person, fixed as well as moveable, are to