ment for misdemeanor is fine and imprisonment, or either of them, at the discretion of the court. It is inflicted in all cases in which the law has not provided some other specific penalty. For example, when a statute forbids or commands an act of a public nature,2 but is silent as to the punishment, the common law imposes for disobedience, fine and imprisonment. A majority of the Connecticut court held, that the fine must be for a limited sum, not for all the defendant's property; and the imprisonment, for a stated number of years, not for life. But this distinction is doubtful, as one of principle. If a statute imposes a fine and imprisonment, both must be inflicted; but if, instead of the word and, it uses the disjunctive or, only one of them can be imposed..

§ 627. There are other common law punishments, used chiefly in particular cases of misdemeanor; such as standing in the pillory, whipping, ducking, slitting the nostrils, and perhaps some other of the like disgraceful kind. And an American judge has observed: "The general rule of the common law was, that the punishment of all infamous crimes should be disgraceful: as the pillory for every species of crimen falsi as forgery, perjury, and other offences of the same kind.

1

The State v. Roberts, 1 Hayw. 176; Northampton's case, 12 Co. 132, 134. To these, other inflictions, such as are mentioned in the next section, may, under the common law of England, sometimes be added. 2 East P. C. 838.

Ante, § 349.

United States v. Coolidge, 1 Gallis. 488, 493.

The State v. Danforth, 3 Conn. 112. And see Respublica v. De Longchamps, 1 Dall. 111.

United States v. Vickery, 1 Har, & J. 427.

The State v. Kearney, 1 Hawks, 53. And see further, Wilde v. Commonwealth, 2 Met. 408. That a fine is not a debt, see Dixon v. The State, 2. Texas, 481.

i

4

7 4 Bl. Com. 377, ́ And see Rex v. Bland, 2 Leach, 4th ed. 595, 2 East P.

C. 760; Rex v. Thanet, 1 East P. C. 408; Oldfield v. Gerlings, 12 Co. 71.

8

,1

S. P., Lewis v. Commonwealth, 2 S. & R. 551.

Whipping was more peculiarly appropriated to petit larceny, and to crimes which betray a meanness of disposition, and a deep taint of moral depravity." 1

Di misery lemonso 8 và strobionem om erg

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§628. But though whipping and the pillory have both been sometimes employed in this country, we may doubt, whether any court in the United States would now inflict either, on the strength merely of English common law authority. Under the national, government, they were abol ished by act of congress in 1839.3 The common law judg ment against a common scold is ducking, by being "placed in a certain engine of correction called the trebucket, castigatory, or cucking stool, which in the Saxon language is said to signify the scolding stool; though now it is frequently corrupted into ducking stool, because the residue of the judgment is, that, when she is so placed therein, she shall be plunged in the water for her punishment." But the courts in this coun

Taylor, C. J., in The State v. Kearney, 1 Hawks, 53, 54. Pulton observes: "Our lawes do chastise those that breake the peace by fraiès, assaults, batteries, riots, or routs, with imprisonment of their bodies, untill their hot bloods be cooled, and their distemperat humors be qualified: but they do impose sharper and more durable punishments upon such as do forge deeds, commit or procure perjurie, or be maintainors of other mens suits or quarrels accounting these last offences to tend more and for a longer time to the breach or blemish of the peace, or hinderance of the justice of the realme than the former doe; as he that committeth forgerie in some cases, shall be set on the pillorie, loose his eares, have his nostrels slit, and pay to the partie grieved his double costs and damages: and in some cases, shal be hanged as a felon; he that committeth perjurie, shall in some cases be one yeare imprisoned, be set upon the pillorie, and never after be allowed as a witnesse and he that maintayneth other men's suits, shall in some cases three yeres imprisoned, and further punished at the king's pleasure and in some other cases sustaine other, disgraces." Pulton de Pace, ed. of 1615, 42 b.

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2 Commonwealth v. Wyatt, 6 Rand. 694; The State v. Kearney, 1 Hawks,

try have held, that the common scold should here suffer fine and imprisonment, instead of ducking.1

§ 629. There are no precedents for a general practice of sentencing prisoners to forfeit particular articles of property, instead of, or in addition to, a fine of a specified sum of money. But such forfeitures are sometimes required by statutes; and they rest on the same reasons as fines. Sometimes, also, statutes impose as a punishment the forfeiture of an office, or of the capacity to hold office. And we shall see in another chapter, that, to restrain men from making injurious uses of their property, the law has moreover provided some forfeitures of a nature not to be regarded as punishments, imposed sometimes with and sometimes without a conviction of the owner for crime; and sometimes with, sometimes without, sentence of court declaring the forfeiture.

§ 630. The common law permits the court, in all cases of misdemeanor, to make a part of its sentence, that the defendant give bonds to keep the peace, and be of good behavior. The doctrine appears not to be, that the offence must be thus dealt with as of course; but that, under the sound discretion of the court, it may be so. In Tennessee, sureties were deemed not authorized after a conviction for a single act of gaming, unaccompanied by circumstances of aggravation. The distinction taken was, that, to justify the

1 James v. Commonwealth, 12 S. & R. 220; United States v. Royall, 3: Cranch C. C. 620.

* Boles v. Lynde, 1 Root, 195.

See Vol. II. § 1008.

* Commonwealth v. Fugate, 2 Leigh, 724. ́

Doty v. The State, 6 Blackf. 529; Barker v. People, 3 Cow. 686, 20 Johns. 457.

Dunn v. Reg. 12 Q. B. 1031; O'Connell v. Reg. 11 Cl. & F. 155; Rex

v. Hart, 30 Howell St. Tr. 1131, 1194, 1344, 12 Q. B. 1041, note; Reg. v.. Dunn, 12 Jur. 99; Rex v. Rainer, 1 Sid. 214.

[[BOOK VI. requiring of sureties in a particular case, the misdemeanor must be gross. And Green, J., enforced the doctrine and drew the distinction, as follows: "The offence of keeping a bawdyhouse is, in its nature, a gross misdemeanor; so also of a gaming-house, or disorderly house. But the selling of a single half pint of whiskey, unaccompanied with any other fact, although against law, and a misdemeanor, would not be a gross misdemeanor. But if it were to appear in evidence, that the party selling was surrounded with drunken, noisy, obscene men, to the great annoyance of the public, this state of things, produced by this practice, and in part by the very whiskey he might be convicted of selling, would constitute such violation of the law, a gross misdemeanor. So a libel might, or might not, be a gross offence, according as the cir cumstances of the publication, and its character, might' mitigate or aggravate it. So a game of cards might be played against law, but under circumstances that would not justify, in this legal view of the subject, the denomination of a gross misdemeanor. But, if he played in connection with common gamblers associated at a gaming-house, or, as is sometimes the case, by the road side on Sunday with negroes, it would be a gross misdemeanor. These illustrations are only intended to indicate the general character of offence to which, we think, this power of requiring sureties for good behavior pertains." 1

§ 631. The constitution of the United States declares, that "cruel and unusual punishments" shall not be inflicted.? This provision is interpreted to restrain only the general government, not the States. But there is the same provision in some of the State constitutions. As to what are cruel and unusual punishments, we have too few decisions to justify

Estes v. The State, 2 Humph. 496, 499.

U. S. Const. Amendm. 8.

Story Const. § 1904; James v. Commonwealth, 12 S. & R. 220; Barker v. People, 3 Cow. 686, 20 Johns. 457.

1

our laying down any rules. In Virginia it was held, that the statute of Feb. 1823, which directs the infliction of stripes in certain cases, at the discretion of the court, is not repug. nant to this provision. The tribunals of the same State have likewise decided, that, under it, free blacks and mulattoes have no rights whatever; and therefore, that a statute requir ing free persons of color, convicted of grand larceny, to be sold as slaves and transported out of the State, is constitu tional,3→ an interpretation which certainly would not be fol lowed in some other of the States.

V..

§ 631 a. In Arkansas the constitution of the State pro vides, that "any slave who shall be convicted of a capital offence, shall suffer the same degree of punishment as would: be inflicted on a free white person, and no other." And the court has held, that this provision refers to the mode of tak ing the life; and does not prohibit the punishment of a slave. capitally, for an offence not capital committed by a free. white person.4

1

§ 632. A view of the pleadings and practice, relating to the punishment, must be deferred for our work on Criminal Procedure. Yet we should here observe, that the jury does not at common law determine the sentence to be imposed; but this is left for the judge, who, within limits prescribed by law, exercises in the matter his discretion. In several of our States, however, the jury is directed by statutes to assess in its verdict the punishment.

1 See Story Const. § 1903; The State v. Adams, 1 Brev. 279; Turnipseed v. The State, & Ala. 664.

Charles v. The State, 6 Eng. 389; Pleasant v. The State, 13 Ark. 360. 5 United States v. Mundel, 6 Call. 245, 248.

As to which see Fooxe v. The State, 7 Misso. 502; McWhirt's case, 3 Grat. 594; Cook v. United States, 1 Greene, Iowa, 56; Commonwealth v. Fry, 1 Va. Cas. 19; Dias v. The State, 7 Blackf. 20; Doty v. The State, 6