some defect apparent on the face of the record; for it is to defects of that kind only, that the motion in arrest of judgment applies. Formerly, indeed, the judgment might be arrested for merely formal defects, as for want of sufficient certainty in setting forth the person, the time, or the place; but now, as we have seen, defects of a merely formal kind are, in some cases, wholly immaterial; and, ther notice on the subject. It originally consisted, in the privilege allowed to a clerk in orders, when prosecuted in the temporal court, of being discharged from thence, and handed over to the Court Christian, in order to make canonical purgation, that is, to clear himself on his own oath, and that of other persons as his compurgators, (see Hist. Eng. L. by Reeves, vol. 2, pp. 14, 134; 25 Edw. 3, st. 3, c. 4, et sup. bk. v. c. V.;) a privilege founded, as it is said, upon the text of Scripture, "Touch "not mine anointed, and do my "prophets no harm." In England, this was extended by degrees to all who could read, and so were capable of becoming clerks; and ultimately allowed by 5 Ann. c. 6, without reference to the ability to read. (Reeves, ubi sup., et vol. 4, p. 156; 2 Inst. 637; 1 Edw. 6, c. 12.) But by 4 Hen. 7, c. 13, it was provided, that laymen allowed their clergy should be burned in the hand, and should claim it only once; and as to the clergy, it became the practice in cases of heinous and notorious guilt, to hand them over to the ordinary absque purgatione facienda, the effect of which was that they were to be imprisoned for life (4 Bl. Com. 369); although afterwards, by 18 Eliz. c. 7, the delivering over to the ordinary was abolished altogether. As to the nature of the offences to which the benefit of clergy applied, it had no application except in capital felonies; and from the more atrocious of these it had been taken away by various statutes, prior to its late entire abolition by 7 & 8 Geo. 4, c. 28, s. 6. As the law stood at the time of that abolition, clerks in orders were, by force of the benefit of clergy, discharged in clergyable felonies without any corporal punishment whatever, and as often as they offended (2 Hale, P. C. 375); the only penalty being a forfeiture of their goods. And the case was the same with peers and peeresses, as regards the first offence; and even after the 7 & 8 Geo. 4, c. 28, doubts were entertained whether the privilege of lords or peers in parliament in this respect did not still exist. This doubt led to the passing of 4 & 5 Vict. c. 22, enacting that, upon conviction for any felony, such persons shall be punishable as any other of her majesty's subjects. As to commoners, also, they could have benefit of clergy only for the first offence; and they were discharged by it from the capital punishment only,-being subject on the other hand, by 3 Geo. 1, c. 11, 6 Geo. 1, c. 23, and 19 Geo. 3, c. 74, not only to forfeiture of goods, but to burning in the hand, whipping (except in manslaughter), fine, and imprisonment, (or, in certain cases, transportation,) in lieu of the capital sentence. See 4 Bl. Com. p. 371. in none are allowed to be brought forward, except by way of demurrer, or motion to quash the indictment (d): so that a motion in arrest of judgment can be now made only in respect of some substantial objection (e). Upon such motion, if the objection taken appear to be sufficient, the court will arrest the judgment; that is, abstain from pronouncing any judgment, and discharge the prisoner. But such a result is not, like an acquittal by verdict, an absolute discharge from the matter of accusation, for the party may be indicted again (f). By recent legislation, another method also is now provided for protecting a prisoner found guilty by verdict, from having judgment or execution awarded against him, where, in point of law, it ought not to be awarded; for, supposing the trial to be in a court of oyer and terminer, gaol delivery, or quarter sessions, and any question of law to arise on such trial on motion for arrest of judgment, (or even independently of such motion,) which it finds too difficult for its determination,-such court is now empowered by 11 & 12 Vict. c. 78, to reserve the question; and to state it in the form of a special case for the consideration of the judges; and in the meantime to postpone the judgment, or respite the execution of it, as may be thought fit (g). A pardon may not only (as already mentioned) be pleaded on arraignment in bar of the indictment (h), but it may also be pleaded after verdict, in arrest of judgment. Yet, certainly, upon all accounts, when a man hath obtained a pardon, he is in the right to plead it as soon as possible. (d) Vide sup. p. 400. (e) See Larkin's case, 1 Dears. C. C. R. 365. (f) See 4 Rep. 45. (g) It forms one of the provisions of the Supreme Court of Judicature Act, 1873, that after the commencement of that Act in November, 1874, this jurisdiction as to reserved cases shall be exercised by the judges of If all these resources fail, the court must pronounce judgment; by awarding the punishment which the law hath annexed to the crime; and which hath been constantly mentioned, together with the crime itself, in the course of the former chapters; and such judgment ought regularly (as in civil actions) in all cases to be recorded (i). The punishment of offences is in some cases governed by the common law only, but is more frequently defined by statute (k). In misdemeanors, it is generally fine or imprisonment or both; in felonies, it is usually imprisonment or penal servitude: the imprisonment being frequently accompanied (both in misdemeanor and felony) with hard labour to which whipping and solitary confinement, to the extent presently to be mentioned, are also sometimes added (7). (i) By 4 Geo. 4, c. 48, whenever any person shall be convicted of any capital felony, except murder, and the court before whom he is convicted shall be of opinion that, under the particular circumstances of the case, he is a fit subject for the royal mercy, the court may abstain from pronouncing judgment of death, and instead of pronouncing it, only order it to be recorded; which, being entered on record, is to have the same effect as if the judgment had been pronounced, and the offender reprieved. By 6 & 7 Will. 4, c. 30, and 7 Will. 4 & 1 Vict. c. 77, s. 3, the above exception was in effect taken away; but both of these last provisions are now (so far as respects the present point) repealed by 24 & 25 Vict. c. 95, and the power of the court (under 24 & 25 Vict. c. 100, s. 2) to cause sentence of death to be recorded in cases of murder, appears to be somewhat doubtful. See Criminal Acts, by Greaves, p. 30; Arch. Pl. & Ev. in Crim. Ca. 15th ed. 534; Rosc. Dig. C. C. 208. (k) In the case of a felony for which no other punishment is provided, there may, by 7 & 8 Geo. 4, c. 28, s. 8, and 20 & 21 Vict. c. 3, be awarded penal servitude to the extent of seven years, or imprisonment (with or without hard labour, solitary confinement and whipping) to the extent of two years. In case of a misdemeanor for which no other punishment is provided, there may be awarded, by the common law, fine and imprisonment at the discretion of the court. (1) The punishment of whipping was inflicted, at common law, on persons of inferior condition, who were guilty of petty larceny, and other smaller offences, but it seems that, by the usage of the Star Chamber, it was never to be inflicted on a gentleman (1 Chit. C. L. 796). Blackstone enumerates also (vol. iv. p. 377) the pillory, the stocks, and the ducking stool, In cases punishable at common law, the judge has a discretion whether fine or imprisonment, or both, shall be awarded, and the measure of either is also left to his decision. And where the punishment is fixed by statute, there is also usually reposed in him, in cases of felony, a discretion between imprisonment and penal servitude; and in case both of felony and misdemeanor, (where either of these modes of punishment is adopted,) a power of determining, within certain limits at least, the period of its duration (n). The judge, however, cannot inflict for any offence, a punishment not specifically made applicable to such offence by the law itself. And by the Bill of Rights (1 W. & M. sess. 2, c. 2) it is declared as one of the antient rights and liberties of the subjects of this realm, that no cruel and unusual punishments are to be inflicted. Some further remarks on those that have been mentioned, may here be material. [As to fines, their quantum neither can nor ought to be ascertained by any invariable law. The value of money itself changes from a thousand causes; and at all events what is ruin to one man's fortune, may be matter of in as ignominious punishments known to the English law. But the first of these is abolished by 7 Will. 4 & 1 Vict. c. 23, and the two last are disused. (n) Whenever sentence is passed for felony, on a person already imprisoned under sentence for another crime, the court may award imprisonment for the subsequent offence to commence from the expiration of the first imprisonment (7 & 8 Geo. 4, c. 28, s. 10). And where such person is already under sentence either of imprisonment or penal servitude, the court, if empowered to sentence to penal servitude, may award it for the subsequent offence, to commence at the expiration of the first sentence; and this, although the aggregate term of imprisonment or penal servitude, respectively, may exceed the term for which either punishment could otherwise be awarded. (7 & 8 Geo. 4, c. 28, s. 10; 16 & 17 Vict. c. 99; 20 & 21 Vict. c. 3.) Moreover in all cases where the court by any statute is empowered or required to award a sentence of penal servitude exceeding seven years, the court may substitute the term of seven years, or else imprisonment, with or without hard labour, to the extent of two years (9 & 10 Vict. c. 24; 20 & 21 Vict. c. 3). [difference to another's. Thus the law of the Twelve Tables at Rome fined every person, who struck another, five-and-twenty denarii: which, in the more opulent days of the empire, grew to be a punishment of so little consideration, that Aulus Gellius tells a story of one Lucius Neratius, who made it his diversion to give a blow to whomsoever he pleased, and then tender them the legal forfeiture. Our law, therefore, has not often ascertained the quantity of fines,-directing rather that such or such an offence be punished "by fine" in general, without specifying the certain sum,-which is fully sufficient when we consider that, however unlimited the power of the court may seem, it is far from being wholly arbitrary, but its discretion is regulated by law. For the Bill of Rights,—which, as just mentioned, prohibits cruel and unusual punishments,―also particularly declares that excessive fines shall not be imposed (o); and the same statute further declares, that all grants and promises of fines and forfeitures, of particular persons, before conviction, are illegal and void,-a doctrine held long before: since thereby many times undue means and more violent prosecution would be used for private lucre, than the quiet and just proceeding of law would permit (p). The reasonableness of fines in criminal cases has also been usually regulated by the determination of Magna Charta, c. 14, concerning amercements for misbehaviour by the suitors in matters of civil right. "Liber homo non amercietur pro parvo delicto, nisi secundum modum ipsius delicti; et pro magno delicto, secundum magnitudinem delicti, salvo contenemento suo; et mercator eodem modo, salva mercandisâ suâ; et villanus eodem modo amercietur, salvo wainagio suo." (0) When the judges imposed a fine of 30,000l. on the Duke of Devonshire, for striking within the limits of one of his majesty's palaces, the house of lords declared that A rule that obtained |