witness upon a charge of felony brought before him, and who refused to appear at the sessions to give evidence, in order that her evidence might be secured at the trial, and Dampier, J., said, "the power of commitment is absolutely necessary to the existence of the statute of Phil. & Mary; for unless there were such a power, every person would of course refuse to enter into a recognisance, and the magistrate could not compel him; and then, if he could further avoid being served with a subpoena, the delinquent might escape unpunished." This is a very much stronger case than the case of a convict required to find sureties, for he is already in prison, whereas the witness is at liberty, and, therefore in his case, the power both to apprehend and commit has to be implied. It is perfectly clear, then, that the Courts have power under these clauses to order an offender to be detained in prison until he pay a fine and find sureties. But supposing a provision had been introduced expressly empowering the Court to award imprisonment until the fine was paid and the sureties found, it would have made these clauses inconsistent with s. 5 of the Offences against the Person Act, which follows s. 9 of the 9 Geo. 4, c. 31; and if that had been altered likewise, both would have been made inconsistent with Lord Campbell's Libel Act, and the other Acts containing similar clauses. 4. But it is asked, is the offender to be committed to hard labour and for a time certain? Undoubtedly neither the one nor the other. The imprisonment for nonpayment of a fine or not finding sureties is not by way of punishment, but in order to compel the payment of the one and the finding of the other, and therefore it is merely imprisonment until he pay the fine and find the sureties, exactly the same as it is in cases of common law misde meanors. 5. Next it is said that "the court will have no authority to take the recognisance of one surety only, since the statute speaks only of sureties." Now the Court of Queen's Bench never takes less than two sureties in any case, and generally four in cases of felony, and with very good reason, for one surety may die, become insolvent, or quit the country; but it is much less likely that two or more sureties should do so. Therefore there was an excellent precedent founded on good reason for requiring more than one surety. The Select Committee of the Commons introduced the power to take the offender's own recognisances. Lastly, it is said that the proviso, which was introduced by the Committee of the Commons, "means that if any person is required to find sureties for more than a year, he shall not be imprisoned for not doing it." According to this reading every person required to find sureties for a less term than a year would be liable to be imprisoned for life, unless he found them: whilst a person required to find them for more than a year would not be liable to be imprisoned at all. The objector, therefore, may well admit that that cannot be the intention of the section. Committee of the Commons thought that the clause clearly meant that no one was to be imprisoned for more than a year for not finding sureties. They framed it, and they are at least as competent as the objector to understand its meaning. The The result of the whole is, that there is nothing whatever in any one of these numerous objections. At the end of note to s. 6, p. 21, refer to the Preface, p. xx. 24 & 25 Vict. c. 95, s. 1. Repeal of Acts S. PAGE 8 11 11 11 2 23 15 15 16 16 293 2. Saving of Acts extended to the colonies 294 s. 3. Saving of offences, &c., before com mencement of Act . 24 & 25 Vict. c. 96, s. 1. Interpretation clause s. 2. All larcenies of the same nature s. 4. Punishment of larceny s. 5. Three larcenies in one indictment 294 295 296 s. 24. Taking fish PAGE 24 & 25 Vict. c. 96, s. 13. Stealing deer in inclosed part of forest 79 s. 14. Persons in possession of venison . s. 15. Setting engines for deer s. 16. Assaults on deer keepers s. 17. Killing hares and rabbits s. 18. Stealing dogs s. 19. Possession of stolen dogs s. 20. Taking money to restore dogs s. 21. Stealing domestic birds and beasts. s. 22. Possession of stolen domestic birds or beasts. s. 23. Killing pigeons s. 25. Tackle of fishers may be seized 80 81 81 82 83 83 84 84 85 86 86 87 s. 44. Letter demanding money with menaces 101 s. 49. immaterial whence menaces proceed 96 96 97 98 98 99 99 100 . 100 . 101 |