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Les diagrammes suivants illustrent la mdthode. \ • 1 2 3 32X 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. t I • • • ) -*--•-♦■» ^ 3Pxx"fc>lig3la.ocl Jo-y xroq-txesiti -« * « ♦■Cix QlTi:r>EC: PUNTED AT TH:': DAILi' MERCURY OFFICE. ISGT. P343.04- W b b I ,^ ! • • • ■ « • • • • ••••■'. « •• ••' : . . . ' • • ■ ; ] 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^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 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 '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^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»' jiiiih'.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 • ; .■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 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. 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 derivcevwr, 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«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 yrevions 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'anetty 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 lnssed, 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)erisions 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: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 precediny Sratnre, ni- by Statute specially nanu-il a- iiiis'lorii(';in«»r? : a:iccitic |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 evierly 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. :; ' -'*' ':"-.!. «'• ' -