Such, then, is the history of these Acts, and such are the observations that have occurred to me to make with respect to them, and the proper mode of framing Acts of Parliament. I can well suppose that the details I have made may appear to be tedious and dull; but should that be the case, it is hoped that the desire to present a correct statement of what has actually occurred may form an excuse, especially as no such statement can be found elsewhere. As to the observations on the mode of framing Acts of Parliament, some of them are so intimately connected with these Acts that they necessarily arose from a consideration of them, and the rest are the conclusions formed whilst considering these Acts and the bills framed under the Statute Law Commission, and I thought it might peradventure be useful to state what these conclusions were, as it might draw attention to points that might otherwise escape observation.

Such then are these Acts. No one will ever know the difficulties with which I have had to contend, and the annoyances to which I have been subjected in the course of the long period during which I have had to deal with these Acts. From first to last, however, I have done all in my power to secure the bills passing in the most correct state, and for that end I have, I believe, corrected every reprint containing amendments except the one with the alterations made by the Select Committee of the Commons, which unfortunately did not pass through my hands.

The bills have now become the law of the land, and I hope I may venture to think, that any defects that may be discovered in them will be very trifling, and that as a whole they will be found to be the most perfect Acts that have ever been passed on the subjects to which they relate, and that the assimilation which they effect in the Criminal Law of England and Ireland may turn out to be as beneficial as its warmest advocates can desire.

My labours are now ended. Failing health and many

other considerations have led me to the determination never again to undertake any Government employment, and I mention this in order that it may not be supposed that I have made any suggestion in this preface with a view to my own personal interests.

ADDENDA.

As an attack has been made in the Law Times on the clauses authorising the Court to fine the offender, and require him to find sureties of the peace, which may, peradventure, cause some magistrates to doubt, it may be as well to remove every doubt.

1. We are told that the difficulties of these clauses are "of so formidable a character as to render it exceedingly dangerous for any magistrate to encounter them." Now, the power conferred by these clauses is only conferred on Courts which try criminals by indictment; and if there be any point of law peculiarly clear, it is that no action will lie against any of the members of such a Court for any error in any judgment pronounced by that Court. The Courts of Quarter Sessions, therefore, may act on these clauses with the most perfect safety.

2. It is said, "it is difficult to understand why the infliction of a fine should be inflexibly associated with the entering into recognisances to keep the peace," and vice versa. As the clause was originally framed, the Court might either impose a fine on the offender, or require him to find sureties; but the Select Committee of the Commons altered the clause in that respect. Nor is there the slightest difficulty occasioned by the alteration. The fine may be as low, and the recognisances for as short a time, and in as small an amount as the Court thinks fit; and, consequently, the Court may in any case, if it think fit, impose a nominal fine on the offender, and require him to find sureties in a large amount and for a long term; or

the Court may, if it think fit, impose a heavy fine on the offender, and take his own recognisances alone in a small sum and for a short term. So that the alteration made by the Select Committee of the Commons can cause no practical difficulty whatever.

3. It is said, "as regards the fine itself, the section makes no provision in the event of its not being paid. Suppose the fine is not paid, what is to be done with the offender? Is he to be committed to gaol in default? What authority is there for this? And if committed, for how long? and if for a time certain, is it to be with or without hard labour? These are difficulties which the framers of the section have evidently not foreseen, and most certainly have not provided for." The answer is, all these supposed difficulties have no existence whatever. When an offender is convicted and receives judgment, he is in the custody of the sheriff, and the question is not whether he is to be committed to prison, for he is actually in prison, but how he is to get out of prison; and the only means by which he can lawfully get out of prison, is by doing and suffering whatever the Court may lawfully adjudge him to do or to suffer.

It is a general rule also that when a statute creates a new felony or misdemeanor, all the common law incidents are impliedly attached to it. Where, therefore, a statute creates a misdemeanor, it at once is liable to the common law punishments for misdemeanor, of which fine and sureties of the peace, and imprisonment in default of paying the one or finding the other, are part. So where a statute creates an offence and specifies its punishment, that punishment is to be carried into execution according to the course of the common law. Thus, wherever a statute creates a capital felony, the offender may be sentenced to be hanged and executed according to the course of the common law. So, where a statute authorises the Court to impose a fine, the offender may be sentenced to be imprisoned according to the course

of the common law till the fine is paid.

And hence

it is that the statutes simply authorise the Courts to impose a fine, and its payment is enforced according to the course of the common law. The framers of the 9 Geo. 4, c. 31, were well aware that this was the law; and by s. 9, in the case of manslaughter, by s. 20, in the case of taking away girls under sixteen years of age, and by s. 23, in the case of assaults on clergymen, the Court was empowered to adjudge the offender to pay a fine; but no provision was made in any of these cases as to what was to be done in default of payment. No one will doubt that Lord Campbell knew the law in this respect; and it is well known that he drew his Libel Act, 5 & 6 Vict. c. 96, with his own hand; and by ss. 4 and 5 of that Act the Court may impose a fine, and there is no provision in default of payment. It would be waste of time to refer to other like enactments on a point so perfectly clear.

All the preceding observations, except those founded on the 9 Geo. 4, c. 31, and 5 & 6 Vict. c. 96, apply equally to detaining an offender in prison till he finds sureties. But one precedent in point may be added. The 37 Geo. 3, c. 126, s. 4, makes every person uttering base foreign coin liable to six months' imprisonment and to find sureties for good behaviour for six months after the end of such imprisonment, and in case of a second conviction sureties are required for two years; but no power of commitment is given in either case. Again, both the 1 & 2 Phil. & Mary, c. 13, s. 5; and the 2 & 3 Phil. & Mary, c. 10, s. 2, gave justices, who examined persons charged with felony, "authority to bind all such by recognisance as do declare anything material to prove " the felony, and contained no provision as to what was to be done if the witness refused to be bound. Now, in Bennett v. Watson, 3 Maule & S. 1 (a), it was held that under those statutes a justice might lawfully commit a person who was a material

(a) Fully approved of in Evans v. Rees, 12 Ad. & E. 55.