Prorogation

“ It was surely difficult to defend a system under which the Sovereign nominated a conclave of his own creatures to decide the fate of men whom he regarded as his mortal enemies. And could any thing be more absurd than that a nobleman accused of high treason should be entitled to be tried by the whole body of his peers if his indictment happened to be brought into the House of Lords the minute before a prorogation, but that, if the indictment arrived a minute after the prorogation, he should be at the mercy of a small junto named by the very authority which prosecuted him? ”

“ The clause which establishes a time of limitation for prosecutions protects us all alike. To every Englishman accused of the highest crime against the state, whatever be his rank, we give the privilege of seeing his indictment, the privilege of being defended by counsel, the privilege of having his witnesses summoned by writ of subpoena and sworn on the Holy Gospels. Such is the bill which we sent up to your Lordships; and you return it to us with a clause of which the effect is to give certain advantages to your noble order at the expense of the ancient prerogatives of the Crown. ”

“ A consequence of this position is that the prerogative may be confined or extended by the supreme legislative authority, and that the courts have jurisdiction to decide whether or not any alleged right falls within the prerogative. The prerogative of the Crown, still of great extent, has been gradually limited by a long series of enactments, the most worthy of notice being Magna carta, Confirmatio cartarum, Prerogativa regis, the Petition of Right, the Habeas Corpus Act, the Bill of Rights and the Act of Settlement. ”

“ The focus of probation is not on how society views the offense, but on how the sentencing judge views the offender. 'Through the social investigation of the probation officer and the power to place suitable cases on probation,' the House Judiciary Committee stated in support of the first probation bill to be signed into law, 'the court is enabled to discriminate and adapt its treatment to fit the character and circumstances of the individual offender.' H.R. Rep. ”

“ In the appeal to a court for the possession of an alleged fugitive, [Pg 409] is not something “demanded”? And what is the warrant that is issued for his arrest but the “institution of process”?
If any one, then, will show that a “claim” for an alleged fugitive, by process of law, to be followed up by proof in support of the claim, and to be consummated by judgment, is not a “suit,” he must show that it is not “the prosecution or support of a claim;” he must show that it is not “the prosecution of some demand in a court of justice;” ”

“ The avoidance of imprisonment at time of sentence was therefore the period to which the advocates of a Probation Act always directed their urgency. Probation was not sought to shorten the term. Probation is the attempted saving of a man who has taken one wrong step, and whom the judge thinks to be a brand who can be plucked from the burning at the time of the imposition of the sentence. The beginning of the service of the sentence in a criminal case ends the power of the court even in the same term to change it. ”

“ Can a judgment inflicting fine or imprisonment be reversed by a court of error, because that judgment proceeded on an indictment containing both bad and good counts, and in respect of which some of the findings of the jury were either defective or defectively entered?—Let us now listen to the decision of that venerable body of men, who are, in the language of our great commentator, "the depositaries of the laws, the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land." ”

“ Let any of your lordships suppose himself by some accident exposed to the temporary malice of the populace, let him imagine his enemies inflaming them to a demand of a prosecution, and then proposing that he should be deprived of the common methods of defence, and that evidence should be hired against him, lest the publick should be disappointed, and he will quickly discover the unreasonableness of this bill. ”

“ The said Penalties to be recovered by the Prisoner or Party grieved, his Executors or Administrators, against such Offender, his Executors or Administrators, by any Action of Debt, Suit, Bill, Plaint or Information, in any of the King's Courts at Westminster, wherein no Essoin, Protection, Priviledge, Injunction, Wager of Law, or stay of Prosecution, by Non vult ulterius prosequi, or otherwise, shall be admitted or allowed, or any more than one Imparlance. (4.) And any Recovery or Judgment at the Suit of any Party grieved, shall be a sufficient Conviction for the first Offence ”

“ The main examples of the former class are revocation by burning, tearing, &c., by a later will, or by marriage of the testator (except as below) , incapacity of the testator from insanity, infancy or legal disability (such as being a convict) , undue influence and fraud, any one of which is ground for the court to refuse or revoke probate of a will. A will being ambulatory is always revocable, unless in one or two exceptional instances. Undue influence is a ground upon which frequent attempts are made to set aside wills. ”

“ This is the point from which we start; each indictment is now a bill of pains and penalties, a special law naming the criminal and prescribing his punishment. A second step is accomplished, when the multiplicity of crimes compels the legislature to delegate its powers to particular Quæstiones or Commissions, each of which is deputed to investigate a particular accusation, and if it be proved, to punish the particular offender. ”

“ It is plain that such court has jurisdiction to render a particular judgment only when the offense charged is within the class of offenses placed by the law under its jurisdiction, and when, in taking custody of the accused, and in its modes of procedure to the determination of the question of his guilt or innocence, and in rendering judgment, the court keeps within the limitations prescribed by the law, customary or statutory. When the court goes out of these limitations, its action, to the extent of such excess, is void. ”

“ The Probation Act, therefore, provides a method by which a person who has offended against the law, instead of being punished by imprisonment or fine, or, in the case of a child, being sent for a prolonged period to a reformatory or an industrial school, may be brought under the direct personal influence of a man or woman chosen for excellence of character and for strength of personal influence ”

“ In a modified sense those devises are held to be void even at this day, and to need the aid of a royal prerogative still existing in the court, to relieve the devisees against the rules of the common law. ”

“ Then: "Mister Foreman and gentlemen of the jury," declaimed Caput in flutelike tones: "The defendant is indicted for the crime of bigamy, an offense alike repugnant to religion, civilization and to the law." ”

“ This circumstance alters the terms of their probation; but if every condition of probation leaves to men the possibility and the hope of eternal life, and the circumstances of all are balanced and weighed by Him who administers the affairs of individuals on principles, the end of which is to turn all the evils of life into spiritual and higher blessings, there is, obviously, no impeachment of justice in the circumstances of the probation assigned to any person whatever. ”

“ Those reasons are found in that other provision of the act, which enacts that 'no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may testify, or produce evidence, documentary or otherwi e, before said commission, or in obedience to its subpoena, or either of them, or in any such case or proceeding'; and it is claimed that it was competent for congress to avoid the plea by a witness of his constitutional immunity, in proceedings under the act in question, by that provision. ”

“ In a publicly prosecuted case, the burden of proof that a defendant is guilty lies with the people's procuratorate; whereas in a privately prosecuted case, the burden of proof lies with the prosecuting party. ”

“ When it appears, as it does here, that the affidavit in question was regarded by the executive authority of the respective states concerned as a sufficient basis, in law, for their acting,-the one in making a requisition, the other in issuing a warrant for the arrest of the alleged fugitive,-the judiciary should not interfere, on habeas corpus, and discharge the accused upon technical grounds, and unless it be clear that what was done was in plain contravention of law. ”

“ For the purpose of determining by suit or by prosecution whether a man is a debtor or is an offender, a suit or a prosecution may be commenced against him, but never for the purpose of raising a presumption that he is either the one or the other, or to deprive him of [Pg 422] any evidence to which an unindebted or an innocent man is entitled, or to change the tribunal which is to try the question of indebtedness or of guilt. ”

“ In a perfect legal system, says Beccaria, pardons should be excluded, for the clemency of the prince seems a tacit disapprobation of the laws (Dei Delitti e delle pene, ch. xx.) . [1] In practice the prerogative is extremely valuable, when used with discretion, as a means of adjusting the different degrees of moral guilt in crimes or of rectifying a miscarriage of justice. ”

“ Prisoner, what my brother Wiltshire says, the law is clear in: there is no precedent for what you ask, and the contrary practice stares us in the face for centuries. What seems to you a partial practice, and, to be frank, some learned persons are of your mind, must be set against this, that in capital cases the burden of proof lies on the Crown and not on the accused. ”

“ To treat the pronouncement of a term sentence as a kind of bargain whereby the probationer knows that, no matter what, he cannot be put in prison beyond the term so named is to give a wholly unreal interpretation to the procedure. ”

“ The view we take of the statute was evidently the one adopted by the judge of the probate court, where the proceedings in lunacy were heard, since that court, upon the return of the sheriff, and the failure of the alleged lunatic to appear, either in person or by counsel, in order to protect her interests, entered an order appointing a guardian ad litem 'in the matter of the petition to inquire into her lunacy;' and an answer was filed by such guardian, denying all the matters and things stated and contained in the petition, and requiring strict proof to be made thereof according to law. ”

“ As befits an authority which thus pervades the sanctity of a household, crosses the threshold and exposes to public view the chamber of mourning, probate jurisdiction in the United States is exercised with great simplicity of form as well as decorum. ”

“ Probation has been defined as a judicial system, under which an offender against penal law, instead of being imprisoned, is given an opportunity to reform himself under supervision and subject to conditions imposed by the court, to the end that if he makes good no penalty will be imposed. ”

“ For the point of punishment, an indictment will lie at the king’s suit, against the false imprisoner, grounded on this statute, for the vindication of the public justice of the nation; and the party, if found guilty, shall be punished by fine and imprisonment. For the relief of the person injured, he may have an action of false imprisonment, wherein he shall recover damages; or an action on the case grounded on this statute, wherein he shall have the same remedy. ”

“ The validity of the provisions of the Charter is conclusive upon us all whether we have accepted the duty of judging or of prosecuting under it, as well as upon the defendants, who can point to no other law which gives them a right to be heard at all. ”

“ Such a leap from the definition of petty offenses in 18 U.S.C. § 1 to the provision for probation in 18 U.S.C. § 3651 ascribes to Congress a determination I am certain it did not make, and misconstrues the nature of the probation statute. The probationary scheme does not purport to set specific sentences for particular classes of crimes, thus evincing an 'objective indication' of the 'seriousness with which society regards the offense,' the standard we have used in determining when the right to jury trial attaches. ”

“ When an act takes place, which an itself, and unexplained, is a violation of law, and the inducements to such infraction are great, it will not be thought unreasonable in a court, to expect from a party who seeks relief against its consequences, the most satisfactory proofs of innocence, especially, as such proof will generally be within his reach. ”

“ Increasingly common is the probation system, the essence of which is to suspend the sentence of the court upon certain conditions. The offender is placed in charge of a court officer who will stand in the relation of friend and guardian to him, in order to supervise his conduct and to attempt his reformation. ”

“ Every procedure which would offer a possible temptation to the average man * * * to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused denies the latter due process of law.' At 532, 47 S.Ct. ”

“ That is, how can those be liable to forfeiture that begin the process. The jest lies in the ambiguity of sue, which signifies to prosecute by law, or to offer a petition.
V.ii.440 (451,9) [you force not to forswear] You force not is the same with you make no difficulty. This is a very just observation. The crime which has been once committed, is committed again with less reluctance. ”