271 



AMENDMENT. 



AMERICANISM. 



274 



and though there is no such exception in the other Statutes of Amend- 

 ment, or in the Statutes of Jeofails, it was established by the current 

 of authorities, that notwithstanding those statutes, criminal pleadings 

 stood upon the same principles with respect to amendment as those to 

 which all pleadings were subject at common law. With respect to 

 indictments, it was considered that, as they are found upon the oath of 

 a jury, there would be a manifest impropriety in making any alteration 

 without their consent ; hence it became a common practice to ask the 

 grand jury, at the time of their returning their bills into court, 

 whether they consented that the court should amend matters of form 

 in the bills they had found, altering no matter of substance without 

 their privity. Instances of such amendments are unknown in modern 

 practice. Criminal informations, which do not depend upon the oath 

 of a jury, may be amended by the court at any time before trial; 

 though this was considered, as late as the time of Lord Holt, to be a 

 questionable point. A frequent failure of justice by means of minute 

 objections was the consequence of this exclusion of criminal cases 

 from the beneficial operation of the statutes. An attempt to remove 

 this evil was made in 1826, by the statute 7 Geo. IV. c. 64, in order, 

 as the preamble" states, " that the punishment of offenders might be 

 less frequently intercepted in consequence of technical niceties." It 

 provides that no judgment upon any indictment or information, for 

 any felony or misdemeanour, whether after verdict of outlawry, or 

 by confession, default, or otherwise, shall be stayed or reversed for 

 want of the averment of any matter unnecessary to be proved; 

 then proceeds to specify a variety of defects, and enacts that 

 an objection founded on the appearance of such defects upon the 

 record shall not have the effect of staying or reversing the judgment of 

 the court. 



But the whole mass of legal subtleties in indictable cases were 

 swept away by the 14 & 15 Viet. c. 100, so that now criminal trials will 

 be upon the merits, and on the merits only. 



It would be out of place here to attempt to enumerate the various 

 statutes passed to remedy defects in the administration of criminal 

 justice. These can only be stated under the heads of the respective 

 subjects to which they refer. 



AMENDMENT, in Parliamentary Proceedings, is an alteration pro- 

 posed to be made in the draught of any bill, or in the terms of any 

 motion under discussion. Although no member (except when the 

 House is in committee) is allowed to speak more than once upon the 

 same question, he may speak again upon the amendment, which is. 

 considered so far a new question. Sometimes an amendment is moved, 

 the effect of which is entirely to reverse the sense of the original 

 motion ; but when this is the object, it is more usual to move a 

 negative. It not unfrequently happens, however, that the amendment 

 proposes to leave out all the words of the original motion except the 

 word " That," with which it commences, and to substitute others in 

 their place. When a motion for the amendment of the House is 

 made, it is always in the words, " That the House do now adjourn." 

 If carried, the House adjourns to the next sitting day, unless a reso- 

 lution shall have been come to previously, that at its rising it will 

 adjourn to some other day. It is not competent, therefore, upon a 

 motion for adjournment to move an amendment, specifying any day 

 t. ' which the House shall adjourn. It was long disputed whether, 

 when an amendment was proposed to a motion after the previous 

 question had been also proposed, it was necessary to withdraw the 

 us question before the amendment could be put ; it was decided 

 in the House of Commons on the 16th March, 1778, that it was neces- 

 sary first to withdraw the motion for the previous question. An 

 amendment may be proposed upon an amendment. It is commonly 

 said that the rule is, when an amendment has been proposed, that the 

 amendment is first put to the vote, and then the main question ; but 

 this is not exactly the practice of Parliament. There the general rule 

 is, that the motion which has been first put and seconded, shall 

 always be the first put from the chair; and, accordingly, when an 

 amendment has been proposed, instead of the question that it shall 

 be adopted being directly put, a vote is taken upon the question, 

 " That the words proposed to be left out stand part of the question." 

 If this motion is carried in the affirmative, the main question, which 

 is really the same thing, is next put, and, of course, agreed to. But 

 it' tlit: motion, "That the words proposed to be left out stand part of 

 the question," is negatived, the words that were proposed in the 

 amendment are substituted, as of course, and the main question thus 

 altered is then put. So that, in point of fact, the amendment sepa- 

 rately is never put at all. 



When amendments are made in either House upon a bill which has 

 passed the other, the bill, as amended, must be sent back to the other 

 House. The rules of proceeding between the Houses, in the case of 

 such amendments, are as follows : " 1st, Either House disagreeing to 

 amendments made by the other should assign reasons, and all reasons 

 must be delivered at a conference ; 2ndly, If the reasons for dis- 

 agreeing are held to be sufficient by the other House, that Hoiise 

 answers by message that they do not insist ; Srdly, If held insufficient, 

 the House at a conference say, that they insist, or adhere, and give 

 reasons for so doing." It may be added, that the almost uniform 

 practice in both Houses, when it is intended not to insist upon the 

 amendments, has been to move affirmatively " to insist," and then to 

 negative that question. As to the practice in passing bills in Par- 



ARTS AND SCI. DIV. VOL. I. 



liament, see May's ' Treatise on the Laws, Usages, &c., of Parliament,' 

 and ' The Standing Orders of both Houses,' published annually. 



AMERCEMENT. Where courts of justice impose a pecuniary 

 punishment, the sum ordered to be paid is termed a fine, or an amerce- 

 ment, according to the nature of the offence and the authority of the 

 court. The difference between these is not merely nominal, though at 

 the present day of no practical importance. The remedy for the 

 recovery of an amercement is by action, or by distress ; for a fine, the 

 law has provided a process for securing payment, by arrest of the 

 person. 



Where the offence amounts to a breach of the peace, or to a contempt 

 of court, a fine is the ordinary punishment, the amount of which is in 

 the sole discretion of the judge : where the offence is of a lighter 

 character, the party is punished by being amerced ; and is said to be 

 hi misericordid, or ' at the mercy ' of the court. In the latter case, the 

 court has no further authority than to adjudge that some amercement 

 shall be inflicted on the party ; the amount of it the law, leaves to be 

 assessed (or, in technical language, affeered) by persons whose character 

 is analogous to that of a jury. 



Thus the sum ordered to be paid by way of penalty for the com- 

 mission of any criminal acts, of which an offender has been found 

 guilty, is a fine, and is sometimes also called a ransom, because it is 

 imposed in lieu of corporal punishment. 



So, anciently, where the defendant in a civil action had a verdict 

 against him for the commission of a trespass, or any other civil injury 

 accompanied by force or violence, the court awarded that he should 

 pay a fine to the crown over and above the damages which he was 

 liable to pay to the injured party. (Hence the origin of the former, 

 and now abolished, proceedings called ' Levying a Fine,' to bar an estate 

 tail.) Where there was a verdict in an action against the defendant 

 for a breach of contract, or other similar injury wholly independent of 

 any imaginable force or breach of the peace, the court awarded that he 

 should be amerced (in addition to the usual judgment of damages, &c., 

 payable to the plaintiff), and the proper person to assess the amount 

 was the coroner of the county in which venue in the action had been 

 laid. In actions in which the plaintiff failed in establishing his right, 

 a similar amercement was imposed on him pro falso clamore suo; and 

 this is in addition to the costs which he had to pay to the successful 

 party. 



Although the records of legal proceedings till quite recently carried 

 on their face the formal evidence of these ancient usages, and the 

 defeated plaintiff was nominally amerced for his false claim, and the 

 unsuccessful defendant made liable in many instances to be amerced 

 for his resistance to the plaintiff's just demand, yet in civil actions, 

 neither fine nor amercement were ever in fact levied. In some cases 

 the legislature had abolished the practice ; in others it had been abro- 

 gated by desuetude, and therefore when new forms of proceedings 

 were framed, after the passing of the Common Law Procedure act 

 of 1852, the nominal amercement of the unsuccessful litigant was 

 done away with. Scarcely any other fines or amercements are now 

 known, except those which are imposed in the execution of criminal 

 justice. 



The subject of amercements was formerly of sufficient importance to 

 obtain a place in the provisions of the ' Great Charter,' which enacts 

 that they shall be equitably proportioned to the magnitude of the 

 offence, and shall in no case be so excessive as to deprive the offender 

 of the means of livelihood. It is by analogy to the case of amercement 

 that fines, although not expressly named in ' Magna Charta,' are deemed 

 to be constitutionally within its spirit, so as to restrain within moderate 

 and reasonable limits the discretion of the judges in imposing them. 



(Bill of Rights, 1 William and Mary; Bacon's Abridgment, tit. Fines 

 and Amercements; Blackst. Comm. iii. p. 429.) 



AMERICANISM, a term used to express some peculiarity in the 

 written or spoken Language of the inhabitants of the United States of 

 North America. Of all the colonies of Great Britain, in which her 

 language has been planted, the United States are yet the only parts 

 that have been separated from the mother-country, and have attained 

 political independence. In consequence of the rapid increase of their 

 population, the diffusion of education, and the springing up of a 

 numerous body of native writers, we see a new phenomenon in the 

 history of the world, of two great nations separated by a wide ocean 

 using the same language. To preserve this language in its purity, as 

 far as its essential character is concerned, to introduce no new words 

 but such as experience shows to be necessary, to form them on true 

 principles of analogy, and to give to them precise and definite meanings 

 these are objects of equal importance to the two nations ; for the 

 preservation of a common language is a bond of unity, and one of the 

 great elements of civilisation. The mother-country may yet claim 

 and perhaps her claim will be allowed by some Americans the privi- 

 lege of a very rigid examination of American importations, before she 

 allows them to be current coin of the realm ; but to attempt to reject 

 all new words that America produces, would be both absurd and 

 ineffectual. New wants and new circumstances are the parents of 

 new terms, which increase quicker in a new than in an old country. 

 The main differences between the spoken and written English language, 

 as it exists in America and Great Britain, may be comprised under the 

 following heads : Pronunciation ; the use of words now obsolete in 

 England, or used in different senses ; the use of words in various 



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