Subrogation

“ Already a conviction has been obtained against me for my opinions on this same event; for it is not one arrow alone that has been shot from the crown office quiver at me—at my reputation, my property, my liberty. In a few hours more my voice will be silenced; but before the world is shut out from me for a term, I appeal to your verdict—to the verdict of my fellow-citizens—of my fellow-countrymen—to judge my life, my conduct, my acts, my principles and say am I a criminal. Sedition, in a rightly ordered community, is indeed a crime. ”

“ Every erasure and interlineation in the deed, by the obligee or appointee, without consent, is a surrender; and a revocation may be implied by law. The passage cited at the bar, from Co. Lit. 232. (a.) establishes, that if the feoffee, by deed of land, grants his deed by parol to the feoffor, it is a surrender of the property, as well as of the deed. And if, in this case, the deed of appointment had been delivered up to the Collector, it would, at once, have operated as a surrender by the Deputy, and a revocation by the Collector. ”

“ But I would not press the matter upon you too severely; the reparation shall be left to your own discretion; but you must decide upon what it is to be, before the Court break up.
LATITIA.
⁠Decide so soon! Will not to-morrow do, or the day after to-morrow, or the day after that?
BRIGHTLY.
⁠No, neither to-morrow nor any following morrow will do; you must pronounce your own sentence before the Court break up.
LATITIA (going about in a bewildered manner) .
⁠O, dear! what can I do? what can I say? how shall I decide? ”

“ If the Sovereign has a perfect right to say whether He will or will not pardon the criminal, has He not the same right to say how He will do it? If the transgressor, upon principles of justice, could be sentenced to endless misery, and yet the Sovereign Judge concludes to offer him forgiveness and eternal life, shall the criminal, the culprit who could not stand an instant in the judgment, presume to quarrel with the method, and dictate the terms by which his own pardon shall be secured? ”

“ For if in our courts, when any one is tried for usurpation, or murder, whatever he may be, whether governor, or consul, or what you will, all these dignities fleet away, and he that is convicted suffers the utmost penalty ”

“ There are various forms of the writ, of which the most famous is that known as habeas corpus ad subjiciendum, the well-established remedy for violation of personal liberty. From the earliest records of the English law no free man could be detained in custody except on a criminal charge or conviction or for a civil debt. ”

“ 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. ”

“ And yet, if after all this precaution it should manifestly appear that a person hath been unjustly condemned, either by bringing to light some latent circumstance, or by discovering that the witnesses against him are certainly perjured, or by any other means of displaying the party's innocence, the gates of mercy are still left open, and upon a proper and decent application, either to the judge before whom the trial was had, or to the Privy Council, the condemned person will be sure of obtaining a pardon, of preserving his life, and of regaining both his liberty and reputation. ”

“ My lords and gentlemen of the jury—I rise to address you under circumstances of embarassment which will, I hope, secure for me a little consideration and indulgence at your hands. I have to ask you at the outset to banish any prejudice that might arise in your minds against a man who adopts the singular course—who undertakes the serious responsibility—of pleading his own defence. Such a proceeding might be thought to be dictated either by disparagement of the ordinary legal advocacy, by some poor idea of personal vanity, or by way of reflection on the tribunal before which the defence is made. ”

“ In that case you will be vindicated from the charge that he has brought against you, but not from the reproach that, however undeserved, will attach to a woman who has been the defendant in a divorce trial, and he will go unpunished. The second course is to prosecute him at once in the criminal court for certain of his crimes that have come to my knowledge, and so put him out of the possibility of suing for a divorce. And in that case your honor would go unquestioned, and he would be condemned to a felon's fate— penal servitude for years. Now, Claudia, I place the man's destiny in your hands. ”

“ 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. ”

“ But if scourging be a reasonable penalty for kissing another man's wife, is not the fault of an instant visited with long hours of atonement, and the momentary delight punished with lasting pain? What shall we say of imprisonment? Must the criminal be confined only for so long a time as he spent on the offence for which he is committed? or is not a penalty of many years' confinement imposed on the slave who has provoked his master with a word, or has struck him a blow that is quickly over? ”

“ We now come to another important word—namely, does the Bible sanction? Sanction! By the term sanction we mean command, consequently the authority of positive, written, divine law, or whatever may be reasonably held as equivalent to such law. It follows, therefore, that toleration is not sanction. Sufferance is not sanction. Municipal legislation is not sanction. An historical statement of prevailing customs is not sanction. A faithful narrative of the life and example of eminent men is not sanction. The remission of penalty is not sanction. ”

“ The judge, after respectfully kissing and raising it to his forehead, presents it to the defendant, to do the same, and receives the oath of the latter on the open book. If the defendant swears, he gains his cause, as it is not to be supposed that the allurement of worldly and perishable lucre would induce a man to incur the punishment reserved for perjury in a future life. ”

“ The wretch stained with crime—polluted with iniquity—for which, perhaps, the statute-book contains neither name nor indictment—whose trembling lips are eager to avow that guilt which, by confessing, he hopes may alleviate the penalty—this man, I say, is checked in his intentions—he is warned not, by any chance expression, to hazard a conviction of his crime, and told in the language of the law not to criminate himself. ”

“ We err in looking for a visible and material penalty, as if God imposed a fine of mishap for the breach of his statutes. Seldom, says Horace, has penalty lost the scent of crime, yet, on second thought, he makes the sleuth-hound lame. ”

“ Any person speaking in derogation of the Book, or interrupting its use, or causing a minister to use any other form, is for the first offence to forfeit ten pounds, for a second offence twenty pounds; on a third occasion he is to forfeit all his goods and chattels and suffer imprisonment for life. These penalties are to be enforced by judges of assize, proceeding in the manner customary on indictment for trespass.
What have we here? A purely penal statute, imposing the crushing penalties usual at the time. My purpose is to show the relation of the statute to the Book of Common Prayer. ”

“ 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." ”

“ I come now to the dispensing power, another prerogative which the Stuarts claimed, and which cost the last of them the throne. As no state can subsist without mercy as well as justice, the king hath the power of distributing this mercy, and exempting a convicted criminal from the penalty of the law, but this is only where the conviction is at his suit; thus the king can pardon a murderer convicted on an indictment in the king’s name, but if he was convicted on an appeal by the next relation, the king cannot. ”

“ So that there can be no doubt, that the present plea is a good bar to the suit, notwithstanding there has been no surrender; if by law the principal could not, upon such surrender, have been imprisoned at all. ”

“ V. And be it enacted by the authority aforesaid, That all and every person and persons, who shall, after the time appointed as aforesaid, for the surrender of any person or persons, so charged upon oath with any the offences aforesaid, be expired, conceal, aid, abet or succour, such person or persons, knowing him or them to have been so charged as aforesaid, and to have been required to surrender him or themselves, by such order or orders as aforesaid, being lawfully convicted thereof, shall be guilty of felony, and shall suffer death as in cases of felony, without benefit of clergy. ”

“ 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. ”

“ It is the intent that gives effect to the acts of parties; nothing was farther from the minds of the parties here, than the distinction of the power of Ustick, as to the eight counties, at the time of this interlineation. The plea avers no such intent, and as well might a delivery of a deed for perusal be tortured into a surrender and extinction of it, and its return into a revocation, as the acts of these parties respecting this interlineation, be construed into a revocation and redelivery. ”

“ Now this same suffering, if inflicted by the law, will be what is commonly called a punishment; if incurred for want of any friendly assistance, which the misconduct, or supposed misconduct, of the sufferer has occasioned to be withholden, a punishment issuing from the moral sanction; if through the immediate interposition of a particular providence, a punishment issuing from the religious sanction.
IX. A man's goods, or his person, are consumed by fire. ”

“ A certain lady having lost her son suspected that his freedmen, whom he had appointed coheirs with her, were guilty of forging the will and poisoning him. Accordingly she charged them with the fact before the emperor, who directed Julianus Suburanus to try the cause. I was counsel for the defendants, and the case being exceedingly remarkable, and the counsel engaged on both sides of eminent ability, it drew together a very numerous audience. The issue was, the servants being put to the torture, my clients were acquitted. ”

“ The law which ordains confiscations, sets a price on the head of the subject, with the guilty punishes the innocent, and by reducing them to indigence and despair, tempts them to become criminal. Can there be a more melancholy spectacle, than a whole family, overwhelmed with infamy and misery, from the crime of their chief? ”

“ Allow me to read. ‘The exercise of discretion with respect to taking of bail for the appearance of an accused person, where such discretion exists—namely, in all crimes except treason, being accessory after the fact to treason’——”
“Yes,” interrupted the Pilot, “that’s the Law, an’ very good it is, very good to them as understands it; but what Sartoris, my dar’ter, and me want is for you to let this young feller out of gaol till the trial, an’ we’ll be responsible.” ”

“ 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. ”

“ The court said: 'The offense was intentionally committed in the presence of the court. When the first blow was struck, that instant the contempt was complete, and jurisdiction attached. It did not depend upon the arrest of the offender, nor upon his being in actual custody, nor even upon his remaining in the presence of the court. When the offense was committed he was in the presence, and, constructively, at least, in the power, of the court. He may by flight escape merited punishment; but that cannot otherwise affect the right or the power of the court. ”

“ But if the contempt consists in the refusal of a party or a person to do an act which the court has ordered him to do for the benefit or the advantage of a party to a suit or action pending before it, and he is committed until he complies with the order, the commitment is in the nature of an execution to enforce the judgment of the court, and the party in whose favor that judgment was rendered is the real party in interest in the proceedings.' See also Rapalje, Contempts, § 21. ”