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6
SOME
LOOSE SUGGESTIONS y
vr,\i THE
litiprobrmcnt of t!]c €xm\m\ ITalu^
IS IT3
PRESENT STATE OF TRxiNSITION.
-—>•»• » I
Ry JOI-I.-Y SSH.li^RY IVILLAI^',
BA^lKISTLEl AT LAW.
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3Pxx"fc>lig3la.ocl Jo-y xroq-txesiti
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QlTi:r>EC:
PUNTED AT TH:': DAILi' MERCURY OFFICE.
ISGT.
P343.04-
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• • • ■ «
• • •
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3P K. E P' A. C E.
TliG following few looso snggcstiong have been
Bubmitted by mo to the public in accordance with the
kind recommendations of a few friends in the Law. Not
originally intended for publication, their manner contains
many defects which I beg to submit to the indulgence of
the critical.
JOHN HENUr WILL AN.
OFFENCES AGAINST THE STATE, AGAINST
PERSON AND PROPERTY, AND
OTHER OFFENCES.
Chapter I.
Ist.-— Tliat death in all capital cases should be inflicted
as in Felony. Reason for suggestion.— That the sentence
in Treason is that tlie prisoner be tortured to death and
mangled, in a manner revolting to modern ideas. It mii^ht
be skilfully used for defence' before a Jury, and, at^all
events, cnn be alwajH used as a repracli to existinic law.
2nd. — That Treason, Vurder, and ci'inics made ctipitsd
by Provincial Statutes, be the only olfences punished by
death. ^
6233
o
3nl. Tliat Coiiiiiij^: ccasG to In- )fun!(](Ml n^ ftn oiTeiico
fl""[iiiist llio Stnto, Mild treated as it rcall.v is— that is, as a
crinio of the chiss known as the cinxu f((lnl:'^
4tl). — lliat all non-capital ca< s be reduced to misde-
meanors. . , n t • ,
5th.— That tho^o ^vhich are now iM-lony and all which
deserve tlie I'eiiiKMiliaiy siioidd create infamy; hat no
inianiv, save convietinn for Peijiiiy, sIk.uKI render a
•svitne.v; bic.owpdnit^ hut f^o only to his credit.f
6th.— That misdemeanors carryiiui; "infamy" sliall be
d'stino-nished hy a pret'x.t. Say '' IIi:tnous.''§ Eecauso it
is so near t.> the woid felonious, and can he conveniently
inserted, as tJiur', ^^ nnlav.-fully and heinously diti," instead
of the other; and hecause'the Word "infamy," of^<rld
associate<l \vith llie pillory, is now associated wilh conflict-
ing^' and va;;'ue ideas intlio minds of the _i;-enera]ity of
people, aiKfis, therefore, ])erhaps better not too constantly
repeated in necessary public documents.
7lh.— .'fliat all crimes now punishable hy Per.itcntiary
(whii h I will in future call hy the name v.,f 'vllcinous'')
shall be punished l)y reniteiitiarv alone. Heason--To
fiepara'-e })risoners ,L;'uilty of crime-, involving- infamy from
those not, and make tlie pum'.-lime;it more eertain in its
• Tl.is i.i an old sdfrgostion, Avliioh I bave BcvetuI times met witli,aad
it F('(ii:;j <^o uk; A K0"<1 o'le.
f 'I'l.i^ onlv cxtfU'is tlr^ piinciple ot tl.c 4Ui aud 5tli Vic, chap. 24,
8,M<. v], :iml 4tli ami alh Vic, cluip. 24, src. 22.
\ F,/r a r<^!uiy oxatapl^ of this (.oramon woici, sec Stat. 22 H. 8, c, 10,
ivraidst the pcrsor.s i alK-d Eiryiiti.iUrf.
§ I fii'thfi- pioposo the folluwii.g new nomeiKlituro : Tliat " licinons
f,l\i>nt<'t=" a"-;iinrtt persr.n and property be dividcil into tlio fol lowing
Ki-MUi.s f.ii.iilifs, or classes, numbered aioordinsc to loiom-nc-nce iu
evil— I'st. Tliodestrui tivc; 2nd. The Uoidinous; :-;rd. The pve.iatory.
Muid'. r, arson, hour,hin!^' cattle, &c., are in the llr t list. Ail tho
de«M!.s of hnte, reVTUge, find the angry passiosi^ belong to it; and
of modern conversation ; and th« nniliee refein;d to in law, owing to Iha
chun,v( s in the language, is sometimes wide as the one and sometimes
uarrowfd down like the otliev.
Thu second word speaks plainly enough for itself.
Olthe tidrd, all manner ot thieving and cheating and unlawfully
hy any means, getting hold of v»hat lawfully belongs to others, may
well bo gvouped under it.
nature, wliich, with otli^r provi'^ionH liorop.f'er to It" dis-
cli)S(!'!, will jtrevciir ilii' {il)r)Vo suii'ir'stioii iicriiiLT ItnrsliU'.
8tl). — Tliat, tlioret'oi'c, (leteiitioii in iliv IN'.iifcntijrv In-
f'»r a term not '* Ic-^s lliuii" a vear aii*! a Jay, iu lit ii <»{' two
voar.s.
Utii — That, to carry out nioro rh-.n-'v tli(5 j)rni('i|>le that
the J.aw, (a^ Dhicksioiio ri;iy-^ in his fourth \oliijin-.) shall
(letcniiino the " nature," aul the .lu^Ii^^c the amount of
T'Unif^htm nt, and yet to limit this ])rincii)le, so as to
narmonize with a 'graduated sf-ale ot'ottVuiees ; the LeL!;isIa-
tiirc shall lix a 'ii'xi.r'ni'iini and inrninivin of detention in
all renitentiary ('j'.sl-s, k'avini;' the judge free to a}i[iortion
either oi' auythinuj between them.
1(K!i. — That, therefore, a scale of crimes ami ]>un!shmont3
be adopted, and tdl heinous olVences hrou^-ht wiiliin it.
That ciM'tain words slnill hear meaning's suited to tliis
scale. ''Life,'' lor instatuje, to in\ olve tlm alternative of
detejition fu* not uiore than twenty-one V(>iii's nor le.-s than
II year and a <lay ; the vio.i'imnni bcin:r ecordiui,^ to their
precedence in the scale of guilt, imddng the ])eriod3 of
].)unishment tolerably numerr)us; the inhinnuni in all cases
the sam(». A '-term" withoul; fm-ther d(->eriptio!i, to mean
not more than three years, and to be the punishment for
lieinop.s crimes where none other is indicated. J>v tliia
course all inconsistencies mnj be got over.
lltli. — 1 thirdv the fo!b>wing would lo a good scale,
but the grouping': of oifences would I'erpiire much carp^ ami
without great care I think it would be too mhiui'-^ : at all
events, it shews what I. mean completely. Highest oliences
(non-capital) life, as above, and the rest tVmrteeu, ten,
seven, three and two years respectively. T];e last for all
attempts (short of assaults) to commit bemous crime,
unsuecessftil conspiracy to commit, ajid attempts to suborn
or 'procure the cf)mmi9sion of, heinous crimes.
J 2th. — It may be asked, wlietbor it might not be advisa-
ble to continue the Infamy of conviction after discharire
fiom detention, and in consideration thereof, in most cases
to reduce the term of detention, — the iMtamy, though
(except in perjury) not lendering the witness incom-
petent to testify, nevertlieUss carrying some civil disacili-
TTES, such as may lureafter l)e determined. In order to
conipromiso between the ancient severity of perpetual
6
infiuny and the modern lenity of making tlio completion of
im))ri9onment pur^^c the offender as a pardon would, and
altio as coinplyiufj with reformatory ideas, I would su«?gest
the offender should, at a term of years from
the completion of his detention, bo enabled to recover his
rights by a le^al process — say a i)etition to a civil Court,
shewing that ids life, since he recovered his liberty, had
been lawful and good, legally and morally, inviting proof
to the contrary, and that his means of subsistence are
ostensible and proper in all respects. I think it would be
well ho should be obliged to advertise his petition, which
ought to be suj^ported by afhdavits ; and if, on proclama-
tion, to be made by oruer of the Court, in a convenient
manner, no one opposed it, on making out his case ho
should have his judgment restoring his right ; and if
answered by any one, let issue be joined on his allegations,
and judgment given on it according to the facts.
13th. — As the next proposal will give rise to some
questions, I have resolved to answer tiiem in advance, or
rather to remove the ground for putting them, by a brief
historical review of the branch of jurisprudence to which
they refer.
In the remote origin of the Common Law, fine or im-
prisonment, or both, were, as they have continued to be,
the punishment of misdemeanors ; but to these, in cases of
nefarious or ot scandalous turpitude, were added infamy
(indicated usually by the pillory, if not always), and corporal
pain. But in the corruption of ages, judges holding ofhce
at the pleasure of the Crown applied these punishments
to offences of a totally diflerent and often of a political
character, and applied to them punishments meant] for
such crimes as by thti "meanness of spirit" (Blackstone's
word) they exhibited, or by some very low, vile kind
of depravity, were a stain on manhood. This was the
original cause of their infliction. They were thought
unworthy a man, putting aside every idea of duty as
a citizen. The greater refinement of modern
ages,
shocked at the manner of these punishments and long
confounded by servile decisions as to their principle, sought
their abolition, and adopted "hard labor" as their substi-
tute ; and thus the incertitude of the old punishment
descended on the new ; and it i? now, by tlio Gmsolidated
Stiitute.s,* in the pnwcr «.t' ji judijo in Canada to nso a
boundless discretion as to '* liai'd i.ibni/' or no, Th'is tho
judicial <'rror, tin; '' liill of lii.iliN " dircelcd ji ehiiso
ai^ainst ret'crriiii; to 'MmuMial |»unislniiLMits," has boon per-
petuated in i'Jiii-1 i;id as wi-ll as heie, and in C'ajiada a
Statute has eoulii-nu'd it. In the 8ul)stitutiin of " hdrd
lahur' for ''' roi'jiond jxiin,''^ cVe., niaiiv oUVncrs \V(M"e im-
])roperly and throuj;h inadvertunce (arisinj^; from the desire
to ;4'ut lid of hiu'lits i^Town odious, r.ither ilnm to li'<;i>lato
on |irincii)le) omitted. Tney slioidd he returned to tlirir
legitimate place. I would, thci't-fore, wilh snhmission, put
them I'athcr amongst the smaller ])nnishments, though
meriting tho greater, than give tliem their deserts, for fear
of tO(7 great and suddi-n a eliangc in justice. I>ul ''hard
lahor" was not the only gi'eal change of punishnumr in tho
English Bystem. Tra!i~;»oi'tatioii was suhstitured tor death.
The-e great elianges mark corresponding chanu'es in
pociety. Of old, the dread of >lavery would have mado
them impossible; but the long abolition of feudalism in all
its sterner features had removed this danger to liberty.
It was in» longer feared that men would be unjustly con-
demned that they niiglit be sold as slaves, without
sentoiice, or slain out of the realm contrary to law; neither
was "hard labor" the olject of abhorrence it was m old
times, when a Statute of that sort had to be repealed in
two years, — a fact woi'thy of note in the event of tiigunient
on that just system so peculiarly proper for Canada, tho
xitilhdiion of convict lahor.
14th. — The category of misdemeanors (not to be prefixed
by tho word ''•heinous'') being thu-i reduced, tho punish-
ment of misdemeanors should be in all cases fink, except
where the judge, c^c, presiding, i-hould ccrlify that, from
" the circumstances ot aggravation accompanying tho
case," he was of opinion that a tine w^ould not bo a sutfi-
cient punishment, in which case fin p: and iMPursoNMENT, or
rather the reverse, " tJ'C deiendant to be imprisoned and
fined" should be tho sentence, without prejudice in any
• Page 133, 4 and 5 Vic, chap, 24, sec. 28 ; 4 and 5 Vic, chap. 25, sec.
4 ; 4 and 5 Vic, chap, 23, sec. 27 ; 4 and 5 Vic, chap, 27, sec. 36 ; 10
and 11 Vic, chap. 4, sec. 11,
Ciiso (wliero it Iwis biv^ii lierotoforo UHiuil) to the cxiictiiii; of
Hiinitiis to tlio lntiu'd oiidiict ot' tlio partifs. Tlio im-
JUMSolllllCllt ill all SU(!ll CaSL'H (willI an KXCI.I'TFmV, 1«) Im;
ln.'ri'ar;cr iiU'iitioiK-dj to l)e i-'inplo iiii[>ri:oniiicnt, imt in
the I'liiiittMitiajT or at "• iianl laiMtr.'"
ir);li. — That tilt) utmost oxtt'iit oi'such Iin[)risoninent as
atoiv.-ai«l, sliall ho onk vi:ai:.
l«Iih.— That ill all cases wIum'c Fines n"C iiiflicte!), if the
aiiumiit iias not been lixed hv Statute, the line hhall lie
i'jioroiMioxi n TO TMK hkimndant's mi.ans.
This reijMires a ^Jho^t historical I'eview. lu the remote
aJitiijuity <il" the law, iinks wim'o to he inllietcl "with
Bale! _v to the coiinteiumce '' of the jiarfy. 'ihis .Sehleii
explain-^ by sayiui^ -'a gobbet" sliouhl ''be taken'' froin
del'viKlant, but his estate shouhi noi bt^ diminished, no]* ho
inij)o\ erished so as to lower liini from his condition in life.
Coke s.iys that " the countenance " of Ji i;'eiitleman is his
estate; of a scholar, his books; of a soldier, his ai'iuor ; of
ix vilb'in (»r hnsbandnnm, his wainaii'e, i.e., his. wa_;-on or
cart, and hor.->'s or oxen of drau_L::ht ; and all tliese are to
be saved, ar.d so the sentence usually endetl, jind '• /ct him
he 'hh ijufC'j''' {^o translated in Court at (^)uebec, when a
]vablic ofHcer wii^ jina/, from the old sft iu nii-scrH'onJid.)
And in order to ascei'tain the " coiinteiia.ice,'" the jury,
afier they had found (Jn'dtij, wore bidden ''t'- enquire" of
the countenance, so that the iino c )uld bo ]iroportione(l
thereto. Why should not this excellent system be i'(^-
stor»Hl ^ I will now incjulrc how it came to be l-jst. it
woidd seem tliat the commencement of the loss of thi.^
good custom muijt be sou^i^ht in the use of" ran son ts,'''' said
to bo great jiacf^, not less than three times as much as a
common line. This ransom would appear to be ti purchase
of liberty by tlie subject from tlic king, just as, at a still
more ancient period, the murderer, or ratlier homiciile,t not
justiiiedj rcuisomcd his life by a payment called we:eylld.
t Coke Kiys homicide (not jastiiiablc, i e , douo by lawful order) wa-i
in ail cJises, aiu ieotjy, dratli, or a wengHil. Hawkins qucptions this;
but I tiiink C'lvrt ligbt, tiec!ius3 1 lind in bool^a oi tnivcl that tho law,
as stated by C<jiiP, in ihut of a certain st-^te of Hocit.tv pJtnu.^t «;vcry-
wbere; and tlie CninesH, I baA'e rrad, ihoutch civUiz>^d, still retain it.
By Franchert'rt narrative it se* ms to bo In iian law on tlie Pacilit; coast ;
and tliH xnrial rtalp of rbe fathers of the Gomtnon Law was w!>iit is now
dweoied barbarous, good as their principles of frt-cdora and jastice were.
I
it
ill
i)t
\L
is;
iW,
I
;tVV
re.
Finos fMid forfcifiircM livipf^ a larsfo part of tho kini^'a
revLMJue, aiil lli»' jii<li':«''* h'»I<liii,u^ " 'it'' I'i^ ])I('a?suro," tho
]»ooj»l ' oiitv.' i;rM\vii ac(.'!j'<l^>iih'.l to soeiiii^ muii iiiipDVeri-liod
t>v '• //A'^/;/.v," (l.V.tki.j'H t'iiVMi-i:u aiul c •inprcliLMisive term f )r
all luaiiiu'r of j/'nii;/), it was not dilliciilt to ixradually dis-
])i.ai>(.! with thu'oM iipjuiiv hv jury us tollio ''c 'untunatici,;."
Til the hitter (hiys of th>.i Tudois and tlio r(»ij:iH ot' the
ytuarts, CMiiidaiiits n\' '" t.vccs.'ilce ^fines''' a:id de|)artiircs
from lht3 uhl prinriple and prociMluio already described
were ijjrievous, und iiiui' \\\\\ liovolution "excessive iines"
were torlutlden in ;;\.'iieril term-*. Jt is worthy of notice
tlial in this and the niatt-a- (jf " eoi'poral jiain," treated of
ah )V(', (/riieni' /.i-w'tib-i wi'ro announced, hut no adeijuate
and exact jn'ovisio!:-^ m ide for their cid'orcemcJit. Coni-
j)hiint, it is to lu; a«sii.;ied, was thus to he satistled hy tlio
hlnidow of rv.'fonii, v, li 1 ; the State preserved t!io substance
of oppression. J nr.:: t 1") -..ell, however, tj iidopt a rulo
as to liees. TluMvioi o. I j>i"opose — ■
17th. — That \\\ t lin • .- i dl not c':cf'cd ono year of tlto
defendant's iiieoni •, wiifii i.ot(d an amount lixed hy Statute.
ISih. — Tlial. no distr • ; .■<!ull issue ali'ainst anyone who i?
])oor and needy, <»r a nin-i-.'^iduiit ; and tiiat, if either lias
been provi- 1 t<» tiiu sa;i>i'aetion of tiie Court, instead of dis-
tress llie C'ouri; hliail award imprisonment, not to exceed
one year, if no oihei" time has been stated in a Statute.
IDth. — That no '' dir;!:rc'>s''' shall issue till defendant ha3
been called on to " shv-w cause" why "distress" should
not issue. And if, in i-n-wrr, ho shews that distress would
ruin him, ov olhei'wl.-e amoun to :in excessive punishment,
then he shall be "put lo his election" to ])ay or bo ini-
pri..:oned for not uioi-o tiian one year, unless in cases iii
which a Statute has provided a diiferent period.
iiO:h. — That all imprisonments lor unsatisiied judgments
awardin<ij fim:s, shall pmpovtioii the, daratioii of ike im-
prUoriineni to the (tinount of the jruljintnit^ as thus — ono
dollar or three days, ten dollars or thirty days, and so
forth; but in)t in anv ease to exceed one vear.
21st. — Tiiat all judLi;ments awarding finks not exceeding
ONK iiUxXDiiFu AND TwiiNTY I'oLLAiis bliall be collected by
XMPFIS0N.M[:XT ONLY.
22ud. — Tiiat no man without property, either fixed or
mO''«^able, independent income, or means of subsistence
10
other tlmn dailv mannnl labor, or otlier constant lawfnl
einj'lojmeiir m<'r<,']y •.iiiilcioiit to liis bare sr.h.-^i^iti'nce, shall
hv jui'd niun> iliaa 1-0 ('iio huiidud niid twenty) (h>Ilars.
L^oid.— i'liiit i 1 a!l and cvoi-y ca-io of vi'sv. in wliich
fhstniiii lias issiu'd, if tlicio ''lie t.ot distress enuugli." de-
fjid lit sh.iil bv' "pat to Ins election," to ])ay or be
iinjtrisMiuri Ua' o: e year.
U'liii. — Tliat ulicre the defendant lias been cnndeinnod
to be iiiipiisonetl ..r.<i I'INj:d, then and then only shall tho
jmiiiniont ot iinpiisoi.inent be ''till payment." As thus —
*' iluu A. B. fciiail he imprisuned tbr and then to
pay J and tu be lurtiier imprisoned till the same
b' ! i>
e piiKi.
2.">;h. — That aiiyono sentei;ced to be inijirisoned and
fiiu'd, niuy^at tin: i I: (! f f h i \ hiij>rison n) r fit {\\-\i:\xm\\g that im-
3>ri.suij)nent which li.-i:- no '■'i)M'>in, make pj'out ol poverty to
tiie .«atisf;,t',fion of {i jieliie "f the Qa.n'n's IkmicIi or Superior
(J»nrt. with sueli aoveiti^emmt <:f his peii»i*-n as may
en:d)le any wiio will r<» ^pixise his pretensions; and if his
pi-etei;sh)ns be. no! rrfnted, and hr ban dlntincUij ])roved
that lui has not madio away -i/vY/V ///.v 7nef/ns to escape his
senf.ijtcCy he shi.U on such proof be discliarged from cus-
ti;c!y.
Jii.ASONS FOR rPwOrosiTioNS FROM 19 TO 25. — ^That by
ANCiKNT Common Law the only modk ofci^llkcting a Fine
IS r.y i)isTiii;ss. From wliich, and the fact that the word
"chattel" is derivc<l Irum '"cattle," and nniny circum-
stances such as my Lord Coke's authority above as to
wainctfje, jmd from ji'l the historic d rea<iing 1 have had, I
bel.eve that in the infancy of rhe Common Law the whole
of lb. people ])ossessed cattle, * r S"i,ie siiareof rude wealth,
like The Ivaliii-s and other coiemporaneous nations iu a
jtnmitivo stale of ..gi-ic iltural ex stence, beyond, indeed,
the mere hujiting st.ite of savage life, but still farther from
c/v?' modern life; and wliei'ever that life exists, t..e usual
pnnii-lurvii!" tor jdniost everything seems to be a fine, when
ir doLb noi uinctuit to ixfoifc'dun'. The jjrogress of civili-
ZMiion, ij<j\>evwr, would alter tliis, and make some other
!n<'de i i ( »;h'Ctiiig fiiics necesr,ary. The abuse of this last
m"de, .!- tii\'au\ ief^r;ed to, miide fines odious; the loss
ot the custom t.t learning the "countenance" or means oi
the defendant, and fining by the " countenance " has ren-
11
otl e. mot I'r" rr'''""' "'■'^ <"' '" « P^ofore«ce ot
i.Zr • ''" ""'' '''''■'"■ "' f''" ^"""-t '-^-^'ns, for
"Mill,. ||„. ,„.,,/,.,,, c7,v.,. I,,, |„.,,„ ,„ ,;,,^. ,„ i,. ;/
Z^'-;^, a;..,! I^vrnx- ..„:.,■ ..u„,,|„„,,„.s hnv. 1,.^, „:..U.n...! u
V i,ehnui!c <-,H,:, 1., ,„,„,. ,,,„,,,,., u,-,. lirst l,rui,.r|,n-, ,'
W .,„..., i,„. nam ,.f j.uc.;.. p„vi...i,.„ ,„ ,,,„u.et a,.!
fo s ; V fi; ■' '"'""'■''■ "* "='^ '^'"■- J I'^'v- ' nd.avoreJ
10 s„j, ,1 ,„..,. s„ „. , , ,ji;,, ,^.i,,,,,,,j /„,„,/„,,,,.
imj.iri.su.iiiji:-, I honwc ,i |
. t . > < J
''.,'"'"TV,''' '" "''""' '"''■'■'■ "'■'-■''-■ '" ' ■■'".-.'!a. Ti,,; are
. . >. ,in .uh aMau,v,„ Pl..,,!,, ,]„ i,„i tl.ii.k tliat liani wliich
tlii'.v aio aeciisiomul f.,. 'I'l,,. iil,..i nf ... , ,. ' •
MIKLSONMI-.M. J he lalu »,/.s7, (of (.lUel- III iM ll',tnr..» I,..
iorc a ,l,sno»» and ,1,. n,..!.,,! ,e!i.f tV ' . n m .a\ t
Y-^'.mHent, aje checks M.i.Mi„»t s.ne,hv (,),. C . ,t ,^
ddtor.), and 11,. wh,.k.'l', mi . r ;„t.; . i"-'f
cannot be a-adi:, al„,,sed .o anl.!, /^ ;i;;": j'',';; !
cases, I l>o!icve M,wTii./h, tl r '< t,<'r, as 1,1 .suuie
12
"which it was committed, it yliftll bo reduced from "hein-
ous" misdemeanor r.nd lose that pretix, and involve no
infamy. Manslaufijhter stands alone, and rcrjuires to he
treated accord inj;'ly. Tliis ])i"()p!)S]tion would be most
pernicious if api)lied to any o'.lu'r offence.
27tli. — That in all other offi nci:s ag.mnst the pf.p.sox, if
the Court be of opinion that dctennon in the i\'nitentiary
would be too severe a punishmeiit, a voiNiict of "assault"
onlv shall be tai-cen wsLad of for \\n}. hiiiher oftence, and
punishable as above. This is not to aflbct the assaidts now
findable by jury in felonies. Tiiese would be "heinous
crimes" under it, and the limit of detenrion on conviction
for them would be three years as now. The word "oidy"
makes all the verbal dilrei'enco needed. For its great
force in a verdict see Wood fall's case.
2Sth. — That on any trial for an offence a^L!;ctinst the ad-
ministration of justice, except in ])erjury or suborFation
thereof, if the Court think that the olfence ought to be
more leniently dealt with than a conviction for ''heinous"
misd('nieanor (or crime) would allow c)f, the veidict shrnid
be taken for "conteni])t" ordy." And in order to meet
all cases (a tar more nunicj-ous elas^) of olf-nces against
pr<"tperty, and attempts again^-t the pu/.sc^ as vrell as to
cover a vast nund)er of traii-^actioi.s which the law, as
existing, has not ju-operly ]>rovi(h'(l fir, it is rKoro^Ki) that
a NEW CLASS of offences, only qtaisi-ci IhluklI^ be inaugu-
rated, to be in legal guilt penal an's (that i:-, adopting tlio
nomenclature ot the late Mr. D. lloss, such acis as incur a
penalty but do not amount to a nii>deinv'uiH")r, and are not
subject to an indictment), and that these offences shoukl
be known as penal tresi)asses. Uecanse the last word
would be used in civil suits for many of these if so fol-
lowed, and because the old trespass (from the ire,y)t(.ss of
the jSorman lawyers) included small transLn-essioiis of all
kinds.f TuE punishment pkopo3i:i) foij such is a ])enalty not
exceeding $20 (twenty dollars) and costt', luul rci^titntlon it
requisite ; or, in delault of restitution, compensation for
• There are contempts, it is said, triable by jury. Tlius the finding
would nf>t be far from prtjctsdentod.
For this word in this conuectioa see "Traversu" in Burns's Justice,
page 324, vol. 4, edition 15.
t See Burns's Justice, page 224, vol. 4, edition 15 (word traverse). It
also containi the word *' contempt."
i from "hein-
d involve no
^'qniros to be
iltl be most
riiE ri-Rsox, if
•Pcniteiitiarv
jf "^assault"
' otrcJice, and
nssanlts now
be "beinous
cm conviction
yord "only"
'or its great
Ictinst tbo ad-
Subori'atinii
ongbt to be
r ''Jicinons"
oidict slirnld
nh'v to meet
iicis aii'aiii.st
^ v.-fll as to
ibe law, as
Kopo^Ki) tbat
I be iiiangu-
udoptin;;^ tlio
;s as incur a
and ai-e not
inces sliuukl
3 List woi'd
^e if p-o fol-
) i/'e.y)(/.ss of
!sions of all
I penalty not
*'t\^fiti(iio?i it
3nyation for
us the finding
urns's Justice,
traverge). It
13
3'Ln'^'''''^^^''/'^'^^ ^r/.^r2Wvr/ were not a Htm^,,
and FORFKiTLiM.: to tbe Crowii to tbe arrK>unt if Iow-h'
J f. pi'T^it}, .Vie., .V:c.,-il,,o abcrn-mve Wn- i M.-.-n-ivn. m" ^
to co,.„,it or ., 'mo.t. •;■';'''•''■' ^l,-i>"l...n,
rur,ishal,lo „s V. al ,tH ' 7'"^?? '" /' '"" '''"^
'n r,; " ,":f,,ir,:;:';,;:'''''' ^'r'y ■^i'-- *'• I'-v:;, I
li'Hl l>eu,, V ev, si ;,:"','';;■' "■-""^' l"-"I'"-iy who
as tl,o„.l, ■■,.:,,' ;;,,^"i' I'J-r"" ^l"-;'''' '- ^l air ,viih
verdict, even ;,■'.•, ';," ^:';'^' l",'"'^''- '" '-•'">-■'• » P «"ch a
toaveubet S iw., • "^ I'"' "'" "•.«•.! " l.!la.„ "a.
j^g".ont bo wiih all cost. 5,z:„,J::t:;;:':; ,•:■;;',;;-
• Tin's sum imprisons f-r (f,.l)^ fim. f r ,
ported by u kin.i ..fpr.c.dVnt i\ "^ ^ '^■''^^' '"''^'^'t '^^ '^ "S s„p-
cases within the range ot ''p opo Hon' 'V' 7""''/'«-fi'-' th" s;un:ua.y
just » iiUlo exceeding it P'"^°'^'^^' elsewhere laid down.a very f.w
in:
u
gistrato iu the first instance, except that imprisonment pro-
portioned to the amount of the judgment, instead of other
limit, should not exceed one yeak of twelve calendar
montlis. Tlie reason for the proviso as to Penitentiary
men is, to kt'cp thorn as much as jiossible apart from the
other prisoners. Penal trespass would not necessarily in-
clude a criminal oftence. Depriving another of things not
in law property, but which he innocently cr.j'>yed, de-
priving a person of an article for " fun " as it is called,
all these sort of acts would be penal trespasses, so that no
8tain would follow the conviction, and the party be truly
free to amend. In this way the contempt of the people for
theft would not be destroyed, yet the severity of the law,
80 difierent from that of the Atlienians and of the Hebrews,
and others, would be greatly diminished.
I have used the word " detention" in reference to tlie
Penitentiary, for if the "utilization of convict labor" be
fully recognized, it might be advisable to employ the con-
victs in rivei's, quarries, or other works far enough from
a regular prison ; and I tliiiik I have shewn the objections
to such treatment of them to belong rather to anticpiity
than to modern times. It is to be observed that burglary
would require this definition, " entering with intent to com-
mit a feh^ny" or '* heinous" misdemeanor. Tlie first word
ought not to be omitted, as it would exclude an intent to
murder — a great mistake; and to avoid the error ot tho
Americans for compounding feluny, I would substitute
compounding "a heinous misdemeanor in the nature of a
predatory crime," as the " compounding felony seems
always to refer to a crime of that character. And all com-
promises in criminal prosecutions without the knowledge
and, when needed, the leave of the Courts, should bo con-
tempt. Because the American system of allowing these
things has worked badly.
29th.— That where any person has been condemned in a
Court of criminal jurisdiction to a fine or penalty and been
imprisoned for iion-paymenc and then discharged without
])aymeat, he shall be put on a list to be called '' the list of
destitute penal debtors," to which the public shall not be
allowed access, lest the debtors be kept out of work by it.
The object of the next proposal is to meet the case of
persons constantly getting iuiprisoned for small finesu Of
i
these, those al»Ie to work oiiMif fo ho A»r»r.?^„ i •
po.sibio "out or.i^a<;VZ;^^^^^^^^
pracfica])Io. ^^-niaii iiaanl.^, when
SOih- That unv y.or.^on on flip 9"i*<] 1-cf o^n,-., •
-ont!. detention at 1,,.,'d i' ■ , ? it in'u, 'it;":"; /"f'^
^tH-„cos, a,,,] no -er t -e ' , f ' -l""'^' •''?='"■'! i"ff to clrcnr^
ii..pri4,„,ent o^de , nt „ f 1 ,"',' '""" "' " '■"^■'^'«'' »»«''
leave at l!,e end of , k , v^ '''•■ "!■"""'■'• •'""' """' ">
till tiu,^i<.pa,.t f,;, .';.;> rir-ie "-> "" '''"" '" "■""''
order to iin.l '-good " '".Iv V'"''""'."'"' -^"'^^''^e an
behavior .ithin >h et; d .f fro^" ,;!''':*,'''^^ ^T '''^^ ?»<»'
t-in, on ),aiii ot treslj coi vu.tl, ' 'i'""'" '™'" ^eten-
till he and them """^"'"""' "'""^ so from time to time,
• See Burns' Jupticfl K.fi, ^-ju-
t See B.rns' JuiS' nal. tl ""', ''''^- ^> P"*^^ -^33,
t Barns' Just cpji'.f 5 •'^^^' ''''• '^^ ^^th edition.
betn u.ed iu law )' '''' ^^'^''"' ^«'- ^' P»^- 343 (to she. th. word h„
'' 1
i (
11''
1 1 i
16
37tb. — Tliat urtder peculiar circumstancea, tlie Conrt
eliall liavc tlio jxiwcr to jiormit a '* vntijabond" under
clause tliirty-four (o tlmii liii, the can:;o b'jiiig t'nlly set forth
(HI the t'aov; ot tlie CMivictioa, instead of the ordjr stated in
thiityt'our, and in a paiua* of '• pro cetion " dinini^ ''good
behavioi','' to he pn>vi»k'tl by the Coart, permittinir Ijjg
resideiiei', and on lii.-. next conviction the onler l)e w'dJwut
diHCi'etioii and pe.iun\i/<n'ij w^ in proposal thirty-fonr.
'•Srunlv'' is the word h>n«x n-^ed in Kiijjriand for ahle-
JwZ/'v/ '■• iraiiips," i*cc. la EiiL;land " va<2;rancy " is con-
nected uiih the ]V)or law-, and all Kni^lish ideas on tha
suhjec are drawn tVoni the feadal tenni'e and the times
that au'i'ietdiui'al hihoi- was peifornud hy men who were
in fact anil law ''^ (kI.mu ipti (jlhm^'' 1 d(3 not wisli these
ideas restored, hut have retained the nomenclature when
de cnhinii: a cla.-;s for whom mere imprisoniEent has no
teri'or, and wiio persevere in petty hiwdn-etiking. Of
euch I sav, accustom them to work bv compulsion for their
livinp; and y<ni <j:;ive them a chance of reform the_y do not
get i.o.v. I havo inserted imprisonment, iSic, for the" vaga-
bond" ]>revions to ordering hin off without it, because
in the Uniied kStatea somu regulations alli.-wing the latter
came mider my notice, and I Inive observed lawless ])er-
pons visited pl,)Ces ilioy vrould have kepi" away from if they
Jiad bi-en sure of being ■p'.uii.'iJiul h''/i>re being expitUd,
Iheword "'• iiicoi'rigible " is an oil wt.»rd ii» common use,
and in repo'-ts, O'cc, should l)e retained, to shew the reason
of the vear's imorisoninent or detention, uliich would
otiierwise sound harsh. Six momhs was an old Common
Law imprisonment for vagrants, ; nd is sntlieient to have «a
reformatory effect on many or most men. oSinety days 1
have lixed on as sufiicient to allow any one to arrange
afi lirs if ho has any, and lo exhaust all chance of getting
woi'k or bail, etc.
38th.. — ihat tlie pi-inciplo of iin-^ : ■— : "^ of former con-
TicTiONS AND PUNISHING accordiuirh,' ' ■ exteiidetl irom its
present linr.ts to all non-ca])ital c;i:,ci'> in all courts of
criminal )>nnishment without exce])tion.
o'Jih.- — That offenders constantly incurring pecuniary
penalties and paying them, shall be known by some name
each as " habitual law-breakers," and be guilty of a
misdemeanor known as such.
17
40rli.--AlI noxDs to i'kack and b.chavk.!.', or oitlier etc -f
houM 1,0 collectable n^ainst the .■m.Nvn..VLs iV ho tmo
!"^vimer as aline, else tlio more ao-.-ravato 1 c i ' ( t ,t
invo v,n^ breach of ^...///. ..^.^..::^. as weU is hw
Will be olteii the /er^sf .ecerd ,, pLLmL ''''^
J^ or the reason of proposition thirty-nine, it U to establish
abs._,luto eanal.ty before the law as nearlv as poss ble n
10
an
i.U.. U js trno tl:L- pn.visiun is litllo jiii.m f|,.,„
'::„„., ' '"'J/'t "ei-s of i,ust (lays) to i„oot wl.o.se eises
piovis ons were fwitlioiit avowal of motive) insertod .'n
t ,ri'f ,.:';!,. f .":"'•' '■» «°"-^'-'t i„ its provisions.
that we should be al.>le to
-,,,!,;. t.Mon,... eonW^^^''^^^]^'- -^^''^a^
a
ill his pockets."'
ClIAJ'TEK 11.
^^^^r^7 ^"'"^ ^^ ^"-^'^^^^^' «>^^^'^l ^^'itl' the men-
' inil'n "^f"^^"^'' '^'-ro allowed to have the eifect of
indictinonts ' in cases of misdonie-inor 11m 'V^^^^/^^
Common Law there wei-e sever-il so/t- wTf • i V 'V , ^^-^
•~ • ''^^'"- ^^^' *^''"iei' option of the prisoner.
thLftoaS:rS^^t;^ t^rn^' -d-. other bonds U^u
t The reason for not enqfer/c Tn cIh treating of other bonds.
See Thorntoa's Case ^ ^' *^-' ^" ^^P^^a^ cases is obvious.
3
18
Now, the wliole Inisis of our criminal jnriapnu'lence is
historical, aixl in its history ah.iie can its "reason" be found ;
and wl^cre tlie ancient jnintiple was rrood and its t xprcs-
sion ah»no was barbarous, mIij not ])rcscrvo or restore tho
first, wliile avoiding tlio last ? Consequently I do not
think there is any gross departure from [)rinci])le in tho
following suggestions: 1st. — That the preliminary ex-
amination now taken in non-capital felonies be convti'ted
in " heinous crimes"' into a trial ^ subject to the following
conditions."'^ The complaint and incidents, including tariff
of costs, in all respects to follow ''the summary" trial of
the -iLh and 5th \'ic.f as hruJ at Quebec, except that, on
convictirmy the Court shall inquire of defendant, " AVhat
have you to say why the sentence of the law should not be
passed upon you C If no sulUcient legal answer were
otl'ered, the Court sliould sentence the prisoner. If, how-
ever, the prisoner chose, he should answer, " I traverse.-'
The rejoinder should be, "Traverser, how will you lie
triecr^" To which the response should be either by "tho
" quorum of the justices of this county," or " by my
country." If the latter, then the question should be,
"Who are your country f' and on the enquiry thus opened
all facts relevant to tho query should be asceriahud or
cov finned ; and, immediately after the manner of trial hiis
been determined, the question should be put, "Traverser,
when will you be ready for your trial f h\ answer, cause
of delay (if any) is to bo shewn, and the time of trial is
then to be perenq)torily fixed, if the t''aven^er elect the
'•^quoi'vm" for his tribunal, the three justices uiereof whose
then term of duty it shall be, shall assemble at the earliest
moment, and determine the case by vote of majoiity; if
not, then, if he be a foreigner, the Sheriff shall be ordered
to summon for tho earliest moment a jury de incdietaic
linguce. If the traverser be a non-resident subject, or any
non-resident is the party immediately aggrieved by the
offence, or is an indispensable witness in the case, or an indis-
pensable witness proves grievous wrong will accrue to hin
by prolonged detention, the Court shall assemble a jury as
the Coroner now does, at the earliest possible oay — that, if
possible, of the trial just had ; and another magistrate pre-
siding, the traverse will be then determined. Whether the
jury shall be of English and French tongue, or wholly of one
* Excluding misprision of Treason.
""♦ see page 2 7.
1!)
I IjG
■'tljo
'■ lllV
be,
Biied
[? or
fscr,
iiise
il is
the
lose
iest
; ii'
red
nv
tlic
lis-
, it'
|>re-
the
I'lie
tongue, or liikon without retVronci- to hiiicr"np:e at traver-
ser's o]ttio)i, shiiU he resolved on the qnestion, " ^Vh() are
vi>nr eoiiMtrvf It' none of tlie circuiiistaiu-DS just stated
apixiar, the ease sliall he M-nt l'<>r trial (di'lay not hein^'
oi'tl.ii-ed for "ean^e'' sliewiA lo the next (Jeiieral Sessions
or" tln' I'eaee.* A( a oon\eii'ent stntrd time before the Ses-
sions of the Peace, the (jnorum shall meet and eiupiire of
the husiness to be done, and if no irrantl j.irv \[:>yo. n et W^v
a vear, or if there seems to be any bill or (»thc!r matter for
tliem lo take action on, tlieii they sliall make o'-fh-r for a
j'l-and iurv to he summoned, Imt no itettv ini'v li' no case
be then pendini;-. If a iii'an<l jury m;'et without ]K'tty jury
<ind aliei' they are risen indictnient remain to ^\'h'c!l ''not
ii'uiltv " has been answered, and the i)risoner (sliewiiin; Hd
eause when asked to the eontraiy, y\d the eomjxisition of
tlie jury beinuj decided on) is I'cady for trial, the ]>etty
jui'ors nec(!ssary shall be summoned f»r the earliest possible
day. If there he neither of the foreiroinii' causes for calhiiL;-
toir(ither the i>;i*and iurv, then the necessarv pettv iuroi-s
shall be called for the General Sessions to disj)Ose of any
]HMidin,<.'; case, and the ia/<'fi de civcumMantUxiH — -that
necessary adj;inct of jury ti'ials and coeval therewith, and
the loss of which his (lelayed and confoundeil justice in
this district — should be restored to that body of jujis-
])rudence of which it is an essential meud)er. Law })ro-
\ides most amidj' a;i;ainst mao'isterial delays, and preroga-
tive writs as old as the monarcliy itself protects the subject
against this mode of denying justice.
So soon as ihe ti'ial of a traverser has b'Cen fixed, 'lie Court
(rhat is, a justice of the peace, or ollieer acting as sncli)
should bind the party either wither without sureties, accord-
ing to circumstances, to a))pear on hi> traverse, and tVlHng
biul.
send him to iirison.
l'*reviouslv, all the ^v ^-sses
oil both sides siiould be bound, without fee, to ajipcar at
Viie traverse, wwX the bond should be their only notice.
The traverse should be called without fee, and if traverser
fail to appear either ]:)Oi'sonally or by his attorney, and no
cause for iiis default, despite of ])roclamation cried in ami
about the (J'>urt, his recognizances shall be escheated and
])rocess ordered. Tiie conviction shouM then bo coniirmod
.uid sent back to the Court v\'hieh rendered it. On a traverse
heino; so returned, a warrant should issue to brinof the
If uouc bo sitting.
I
20
I (
I' . I
I '
traverser lo slicw cnnso x\-liyjn(loTnoiit slionld not 1)C ffivcii
ag.'iinsl- liini; r.iwl if lie lied ior it, on proof of the retiirti,
|)ro(;lnin:iti(»n sliould l<o iiuulo Jiud notice i^-iNon .an<l duly
advertised for liini to Hiirreiider hy a fii;iven day, fjiiling
which sentence B^'oiild l)e ]>nssed, and take ejfect v.'lieiievei'
he should he arrested. If the t averser appealed hefore
the Court, h(^ should be a^laMl "what he liad to say wliy
tlie sentence rd the law shoidd not he pi'onounccMl against
him r' an I his answer nliould he he tak<'n in wriling, and
lio should he free to ]>rove if lie could that it was not
possihle f )r him to have a])])eared, or get another to liave
appeared fni- hini on Ins traverse, {ind the evidence on the
trial ol that issue must he taken rn. fxicm^o^ so that it may
be "r(;tu]i)e<r' if M)Ught, and if he made good his case lie
Bhonld he allowed a special tii'ah to be had as speedily as
in the case of a Jion-ivsident, but otherwise in tlie way lie
originally cliose, unless ho waives a jury he had first
desired. At the trial of traverses, calling the witnesses
ehould in all cases be the next step after calling the traverse,
and defiiult, should esclieat rec(\irin'zance and ])roces8 issue
forthwith. Where the traverse goes io the '' quorum" and
not to a jury, the evidence before tlie quorum should be
taken in <j:tl.:iif<o^ so as to be ]:»art of a return, if sought.
Acquittal by the quorum should be final, save as subject,
hke any other decision given by it, to certiorari.
4th. — Of :mi:kh ]M.isdk:\ieanoks. — I ])roposo that, with the
folhjwing exceptions, the«e should be subjected to an
extension of the principle of summary trials. I would
except all seditions and otfences committed by publishing,
endeavoring or conspiring to publish in iM;cirsTi:Ki:i) prints
or publications, or C()ns})iracy to defame by ])ublic
discourses at lawfully convened or lawfully assembled
public meeting:?, or to defame any person on account of
his public conduct or oflice or dignity, or any matter
relsiting thereto ; likewise all mis|>risions of otiice by
shcrifls, deputy sheriffs, corojiers, justices of the peace,
or any higher public otHcers ; or oiYences against justice
by advocates or suitor.^- in the course of litigation, save
contempt of Court. All these should be left to the old
method. Thus the liberty of s})eec]i, the liberty of the
press, the llhertv of association, the libertvof the advocate,
the liberty of the suitor beiore the law, the right of
'21
lilts
biic
led
ot'
:ter
l>.y
the
tte,
of
nccnsfitlon, jivhI t'lo r,oiitrr»l of tlic country over its puMIc
<)fii(UM's lire all retiiiiio'l iiiiiict Jiii«l as lliof now are. All
(•tlicr iiii-i(]iMn<'aiinrs} to Ix^ sul)Jeet to sniiiniarv tri: I, witli-
i>ut, |)i\' udice to ovist iniji; rciiUMlics, shoiiUl they i)e
}>ret'err('(l. "i\\o juri.-^diction in such trials to he a fine
not exeeediniT lil'ly dollars and costs, or, for non-])ayinent,
]»roj)oi'tioiiaro ini|,risonnient, at the rate of three days to
one dollar, tkc. — the \vhi»le not to exceed six months,
unless s|)ef'ial circninstarict'S of aL''ii'ravation, ])roved at the
trial, he set forth with the sentcnc and entered on the
face of tlie comiction, and any cotninitnient arisin^:;- there-
from. On siK'li conviction the sentence shaU he either a
fine e::ceedin<i: lifty and not exceeding one hundred dollars
wifli costs, or. in lien of ]>:iynieni, iniprisonnient for more
than six and not more than twlve months, — fdlowing
within those limits the ]>ro))ortiMii;ite prineiple of fine and
its alternative, as already staled, or im])risotiment for not
more than six mr-nths, besides line not over i5^5() and costs.
r)th.--()F SuuKTv. — Kutni'e summary sentences not to
affect existing" law as to l>indina; to tlie ])eace ; but any
person three times convicted — the second and third offence
bciiiii^ committed afler the ex])iration of a precedin<j^ sen-
tence — (of misdemeanors directly and not merely con-
structively against the peace, or tendini;' in the same
immediate way to the breach thereof,) to be called on to
shev/ cause why he sliould not he bound to the peace for
life and failin<i; it '■•-o bound.
(!th. — Ok I'liuKAT^i. — Threats should be tried like assnults,
ami the bindinp^ over should be the punishment foUowiuL^
conviction with costs as in assault cases, and in the same
way the third conviction should cn^'ail bindino; over for
liie. If iu answer to the char^-e the defendant shewe<l
sh'ons: provocation in the common sense of the words, lie
sh(-)uld be exonerated from belm;; l)ouiul over as ])roposed ;
if he faile<i to do so he sliouhl lind sureties for life on pain
of imprisonment See Chapter L, from liD to oS.
Tth. — Of Codification i.\ Cfrtain Casp:s. — T!ie existii g
summary jurisdiction acts should be codified, with the excep-
tion of those referring to the army and navy, and the offences
they contain classitied in two divisions, to form permanently
the two geneial delinitions of public olfunces benoatli
vagrancy. These two should be misdemeanors and penal
i
i
00
acts. The first sIk.uM moan an indictablo orronco! t;:e
jaftor nil f'ticr.r'o oniy carryinf; a veciriiavv ponalry (t..
M'hifli tlio ^V'Vi] finf siiHiil.l n'lt aj ply). Sucli oiiciK-c* art
■j\' tliroe kiiid.-. — ^h'^^e ^liicli. iVoin tli ir ii^lierenr malice,
are ilni:c^1l•l" at r .Miiiifn Lau*; tlrj-e fleclaix"] iulicrablo
l>y Sratnre, ni- by Statute specially nanu-il a- iiiis'lorii(';in«»r? :
a:i<l rliusf criminal vi'»larin]i?i ofa Statute, ii"t carryiri' '.vitli
it a <-]>ccitic |ienaUy.a> are lield by a L'oneral maxim «l']aw t<»
l»e indictable. Wlierc the^e incrredients are wantirii:, tli'*
violation cf lav: slioiild bo cla^siMJ as a penal act only, an-l
wliore a F^peciiic nm'innt liRS thus been lixed, the p-.Tiairy
to be n<»t over fit\v ib. liars and c'>>t-5, and the pr-'L-edare
(when not otherwihie directed by Sratutet t«i be ^unmiary.
and the indi'-ment enforced as in misdemeanor — the dis-
cretion of the Court t<^ be the same as in miMlemeanor.
saviuir, h.tvrever. the n::"ht r.f an informer or other indivi-
dual .sliariiii: in the penalty. AVhei'e the same thinL' i.-^
both a mir^aemeanor and a ]ienal act."^ and procerus be ha-l
in two Courts, the same check (subject iv an infurmer or
other individual's riirhts) which exi>ts on indictment, and
suit, when lu'ought for the same tre.spa-^-s, shall extend to the
double remedv iijst referred to. Y^hen the jurisiliction
over both is vested in the same Court, it shall suffer but
one at a time. After punishment beinir underiroue formi--
derneanor. n-* information for a penalty shall by it be allowed
for it; and if on information a misdemeanor be disclosed,
the Court may certify (if circumstances warrant it) that
defendant has l-.eeu sufficiently punished, which (if not set
aside by hi^'her authority; for instance, on an appeal),
shall be conclusive as an estoppel.
Of IxFA^ruus Pr.p.-oxs. — All ]>ersous ri,2"htly attainted
or sentenced i lawfully) to death, or wlio have been sent to
tlie Penitentiary in consequence of an undisturbed capital
conviction, or h.ive l)een riglitly sentenced to the Peni-
tentiary on an undisturbed conviction f >r heinous crime
and have nor been rehabilitated, shall be deemed infamous
1
persons. Tliev shall be cliallen£i-a]de f)r cause on aiiv
— V *_ t
jury ; and save for their lives or mi-prision and seditions
c\:c., ■!• tliev shall not be ti'ied bv a iurv, and siiall be
co'.mted to be at large only "during good behavior, "
to which, for special and sufficient cause proven, they
in
av be bound for llf
• See piCt"' 3 1.
j Set- jages IS and 20.
28
Of Ai'ri:\i,«». — In all the cases al>ove-iiie!itioiKMl, the
compltiiiiaiits >li<.uKl have a rit'lit t«> ap]»eal lr.»in the sum-
mary trial an«l juduiiient reiKUaetl in the " liist instanee,''
it he conceived liiiur^eh' a!:::;rievo(l therc])y. V»Mienever the
«lel'euilant has no right l«> a Jurv, lie should he allowed an
appeal tVoiu the verdict and sentence of the '' tlrst
instance.'' Evidence in aimm al- slmuld I'o conlined solely
to the evidence (ttlercch and either received or rejected
in "the lirst instance," or which at that tiniu was
diligently sought and made a ground tor an im[ir<,'i»erly
rf-jccted motion tor delay. Where evidence given in the
lirst instance cannot be produced (without fault or neglec:
of the [>arty desiring its in'oi'uction) at the a[>peal, the hest
obtaiiuihle secondary evidence should ho taken to establisji
what the neces.-aiy witness said in the iirst instance, ur
Mhal snbsetiuentlv unatrainahle evi<h:nce was ori^'-inallv
rendered or produced in open Court. A' 1 evidence in a])peal!4
sliould 1)0 taken itie:cttiiso. The Court in Apj^eal should be
lield at tlie vhef llcu^ and, except where, as in the cities of
(.^^nebec and Montreal, other functionaries exist to whom it
might 1)0 pro}>erly contided, should bo Cv»mposed of the
sherilf, or in his place his deputy, or the coroner, or the
cliairnnm of the (Quarter iSessions, or a barrister duly
appointed to the otHce, and two justices of the jjeace, — the
majority to decide. The Court on appeal should give judg-
ment tie nocu^ unlevsthey confirmed tlie original judgment.
^\\\ appeals to bo taken within three lawful days.
()f (.'KiMioKAin. — Wherever tm apoea' lies, certiorari
should bo allowed to arise (^t'or cause) from its adjudication.
On certiorari^ the evidence and tindlng thereon being
returned, the judges should impartially set aside every
decision arrived at or any part thereof which might apj)ear
to them, by the return, rejtngiiant to the evidence, v.diether
suchmiglitbo in lavor of diefjudant or against him, and
substitute a deciriiou cic noco^ according to the evidence
the return discloses. If tiie linding seem correct, but the
order or sentence or judgment seem wrong, then they
should set it aside and gi^e judgment de naco on the lind-
ing, whether the same be in favor of the accused or the
accuser. AVhen certiorari is granted, good bail should bo
had, or tlie petitioner to remain a prisoner till the case is
decided, which must be by the Queen's Bench in criminal
Appeal and E]-ror.
24
Of [I.vbhas Corpus. — When a judge r-'.lcnses a prisoner
it should be on an order, with or without bail -it tlio Court's
discretion, to submit to suelijudiA'inent as niit;htbe rendered
by tlie Queen's Bencli, as in the foregoing provision, or
tlie judge sliould reserve the apphcation lor tlie judgment
of that Court, without order of enlargement, if he see no
reason to grant such order. This is to be confined to
persons detaiiied under the intended Act, and them only.
Tims, unifoi'inity of decisions on jioints of law will be fully
secured, and the interests alike of accuser and accused be
secured fi'om hasty or arbitrary action by methods not
wholly strange and novel in our jurisprudence.
To rL'KTJiEK Expedite Justice, — I would ])r(>pose that
sergeants-at-law should be appointed in Lower Canada by
the Crown, who might be, according to commission, of
one or several or all the Courts, to be composed of
advocates of a certain number of years practice, or of
gentlemen who had been Queen's Counsel or held other
iionoralile office in the law before the passing of the Act,
so that Canadian Courts should be in the same position
as English Cour*:s, where the sergeants are assistant judges
and supply all temporary vacancies.
Of Disageeements on Jukies. — Where the jury cannot
agree, re-try the case at once by a fresh jury, either from
the panel and a tales de G'u'curitstaniihus (if need be), or if
there be none on the panel, by a special precept to get
together speedily the proper number of good and lawful
men, w^hether on the jury list or no, and so form a jury of
twenty-three men, of whom twelve shall be of the
language of the defence, if prayed lor by the accused,
and the linding to be by twelve voices or more as
the '-iase may be. If, however, there be not twelve lor
not (juilfj/, nor yet twelve ai-reeing on the degree of guilt
and several degrees of gnilt may be lawfully fuund (as, for
example, murder or manslaughter or assault, any ol' which
may be rendered on an iuuictment tor the lirst), then,
if on reconsideration the jury cannot find an agreement
of at least tvv'eive, the iinding shall be entered on tlie
lowest degree, and taho effect as if unanimous, a s|-.ecial
entry being made and so with every finding less than un-
animous. Thus another source of delay will be cut otf.
The right f the prisoner as to the number of condemiiatory
Voices ^\\]] l)c retained, and tlie "odd man" is given in
ir.Yov ol lii.s ]an,i,r;an.e and his right. The number is that
])reie)-red for giaiid juries ; tlie majorit}- for a finding the
same— llio record made to folhjw the fact and ])revent the
})ossibility of any ii-reparable wrong by an error wliere a
'' pai'tial verdict- " is taken and allow " writ of error" for the
correciion thereof, and tlie present principle of the unani-
mity of juiors wt.idd not \h) trenclied on, because agreement
w^ould still be t xpected until the contrary had been proved
by the example of the fact, and then the case would be
treated specially as an exceplion to the general principle,
which M-ould stand untouched.
^ In all cases exce])t treason, misprision of treason, all sedi-
tions, and niis])risioii of oflice by great public officers, or
such as are at least as high as a justice of the peace, which
should bo excepted, pai'ties a'liswering indictments or
suggestions should be allowed, if they chose, to prefer the
Court to a jury, in which case the evidence should be taken
down tn ixtt7iso (as a guard against error\ a process impos-
sible before a jury, and which would make that system in
pnictice a nuisance and a three), and in capital cases the
Court, should be a special sitting of the whole Queen's
Eench, absent members being supplied by the Superior
Court judges, tailing Serjeants, as in page 24 sui^o-ested. The
miding to be by majority. Debates on theselatter cases at
leasi sJioidd l)e secret, as the councils of iri-and jurors are
now sworn to bo (Imman nature needs this check against
revenge where life, at least, is in question); and all such
trials should be sought when issue is joined, and taken out
ot the way of the jurymen in attendance, so as not to delav
them. 'Ihe stated assemblages of Courts needing juries
should be again as once they were, held in winter, and
where once a-year is enough they ought to be held as
formerly, jf not still, in some English counties, only once
le
a-year. ^ VV lierever an indictment for a matter with'in tl
jurisdiction of the Sessions is tound at another Court, if
none aj^pear either to pru^,eeute or to answer it, at the
hnding (he judge shall cause proclamation to be made for
le
o cause apj^ear it slndl be sent
any who know cause why it should not be seYit to tl
Sessions to shew it, and if no cause appear it slndl be sei..
own to the Sessions on the last day of the term (or assize^*
• The Pfitue ^\hfcnover no ciiu!«e is slie\rn.
d
26
Where a party desires not to have hi:^ case tried at tlu^
Sessions, though desirous of a jury, and shews cause tn
apprehend a failure of justice, whether he be prosecutor or
defendant or traverser,* the judge applied to, or the Court
if in term, shall make order on tho case by any means fit
to meet it, prefering not to send it to a higher Court if the
objection can be fittingly disposed of some other way, as
by ordering particular magistrates not to sit on it or the
like; and the fixed "day" of Sessions should always pre-
cede the fixed time of meeting of any other criminal Court.
Inquests, &o. — Wherever a coroner's inquest finds mur-
der, the party, if present, should be publicly jirraignod by
the coroner (whose inquisition should have the benefitofrho
simplifications, abbreviations and amendments of modern
indictments), his plea then and t'lere taken ; if " not
guilty" time and mode of trial, including the composition
of the jury (if the prisoner elect for one), be then and there
settled, and the return sent to the Queen's Bench and the
case forthwith tried without troubling a grand jury al>()Ut
it as is novv always done, though the law never exacts and
never did exact it ; and the return being sent to the Crown
Oflice, the judge whose term of duty it shall be, shall be
notified to attend, and the sheriff shall precept a special
jury, and that judge and jury shall be a court for that
case, and it shall by this speedy and special tribunal be dis-
posed of, unless the prisoner has waived his jury, and then
all their honors of dignity fit for the case shall have notice,
and the prisoner get a special trial without delay. In all
cases between the military, neither the culpi-it nor the
injured party being a civilian, the martial law should be
restored to all its former power; and all cases formerly
tried by Admiralty should be restored to that jurisdiction
again.
Bonds to prosecute or testily should, when called
if escheated for default, be followed by the immediate arrest
of the defaulter, who should be asked to shew cause why
he should not be imprisoned till his bond is paid ? If he
excused his default by strong and special reasons, ('Ourt if
minded might enter the cause shewn on record and return
it into the Queen's Bench in Appeal, and the forfeiture
might be there remitted or confirmed.
If the party proved that he was destitute and unable to
• See page 20.
27
pay (he should be ailmitled to oath) and the statement was
not rebutted, despite of every facility being given fur the
same, then he shuuld be sent to prison for contempt for
any time not niore than months, and then dis-
charged ; if not, failing cause, therule should be absolute to
pay or be im[)risoned till })ayment. The principal on a
bond to the peace, ifec, or to appear or surrender to judg«
ment, or nuiintain a traverse, should, if not attainted or
Bent to the Penitenti; ry, be dealt with in the same way,
except when attainted or put to hard labor for the matter
for which he gave bail, or the act by which he broke it,
then " distress'' (without limitations) should issue against
all he had, so in all costs against '^ Heinous criminals."
Partiks giving Bonds fou Otiikks. — On the default
entered and the bail estreated, distress should issue, and if
there were not distress enough, a rule, vhethcr in torin or
vacation, should issue to sliew cause why the defaulter
should not be iini)risoned for not more than months,
for contempt — the period to be limited as in other mis-
demeanors.
¥ek Fund xAot. — A. repeal of the Fee Fund Act, as far as
practicable, without gross injustice, would harmonise with
many of the foregoing suggestions, and probably effect
ffreat benetit. It should be a rule that whatever kind of
imprisonment a man was last sentenced to should be the
same he should in all future cases undergo, and hard labor
men when from any necessity kept in a common prison
should be separated from all others. In treason, felony and
offences against the dead, the evidence should be taken
down m extenso, both for and against accu^-ed, and taken
in all respects with a viesv to use under existing Law.*
MuRDEli, AND THE BoDY NOT FoUND — lu cliai'geS of
murder, when sending the case to trial is determined on,
an inquisition (if the body be not forthcoming) should be
called to be quoad the matter in their charge, a grand
jury and thw. pnsojier discharged . of ,rRESENTED, and
plea taken a?id : mpde ; of triuil;- fi^eteVnimed on their
tinding, — this incpYisitioh to be 'ur'"t\veiitj-three men,
called like a* .'coirhner's inqije^t .":!,•••!**
Trials without jm-y shoiih* ',r^{|yd peither season nor
term nor vacation ; the soonest possible day should be the
fit one for them.f
• Bioding witnesses as by page 19.
■j See page 'jfj.
I
V/
28
Of Paupers' Kiohts. — Paupers duly sworn to be sucli,
fihould be entitled to in1't»rniations and warrants in the
first instance in all cases, and if not depauperised (as
tliey should be if not really paupers), they shonld be
able to toUow the case to jndo-nieiir, but if cast they
should elecL to pay costs forthwith or be imprisoned
for not above , Jvs in ini>flenieaiuii-, and put
on a list of public debtors.* All men owing forfeited bonds,
as above, sjionld be i)ut on ibis list, rnd m. such i»;.blic debt
or, till payment, should hohl hicrative t>r honorable offices
or be admitted bail for another, and should be cluUleng-
able on a jury (mind chalienpible only !^o as lujt to have
endless ditiiculties after trial, such as a total exclusion
would cause). A public debtor losing; a cause in Forma
Pauperis should elect to i)ay costs or be guilty of vagiancy.
Costs AND Expenses. — All judgments under l^tatutes for
fines or penalties should be for amount and costs as in all
other cases, and there is no good reason to the contrary.
Costs in traverses* should be as in appeals, but should
await judgment.
Malicious arrests and prosecutions for heinous crime
should be onudchteanors, and C(jui-t- sitting without jury
might order their immediate prosecution and punisiiment,
without prejudice to the party's action for damages. Ihus
the punishment would be as summary as the i)rocess, and
the i)rinciple of the old Statute as to the old writ of appeal
would be restored.
Of Indictments — Every indictment should contain the
name, description, and place of abode of ihe private party
preferring it, and he should have to be called over, and his
identity and the fact of his having prelerred the bill should
be established, and, if necessaiy, tried and adjudicated on,
before defendant should be called on to answer, except fur
treason, misprision thereof and sedition only.
See page 20.
• • • •
I « . • • • .
• •.» •
Page 14 omits "fo 'providV that arrest and impiitjonmeut in hLinoua
crime Bhould bv»jb.ru fcloiiy. :; ' -'*' ':"-.!. «'• ' -