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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 ori- clergy applied, it had no application ginally consisted, in the privilege except in capital felonies; and from allowed to a clerk in orders, when the more atrocious of these it had prosecuted in the temporal court, of been taken away by various statutes, being discharged from thence, and prior to its late entire abolition by 7 & handed over to the Court Christian, 8 Geo. 4, c. 28, s.6. As the law stood in order to make canonical purga- at the time of that abolition, clerks tion,—that is, to clear himself on his in orders were, by force of the beneown oath, and that of other persons fit of clergy, discharged in clergyas his compargators, (see Hist. Eng. able felonies without any corporal L. by Reeves, vol. 2, pp. 14, 134; 25 punishment whatever, and as often Edw.3, st. 3, c. 4, et sup. bk. V. c. V.;) as they offended (2 Hale, P. C. 375); a privilege founded, as it is said, the only penalty being a forfeiture upon the text of Scripture, “ Touch of their goods. And the case was “ not mine anointed, and do my the same with peers and peeresses, as “prophets no harm.” In England, regards the first offence; and even this was extended by degrees to all after the 7 & 8 Geo. 4, c. 28, doubts who could read, and so were capable were entertained whether the priviof becoming clerks; and ultimately lege of lords or peers in parliament allowed by 5 Ann. c. 6, without in this respect did not still exist. reference to the ability to read. This doubt led to the passing of 4 & 5 (Reeves, ubi sup., et vol. 4, p. 156 ; Vict, c. 22, enacting that, upon con2 Inst. 637 ; 1 Edw. 6, c. 12.) But viction for any felony, such persons by 4 Hen. 7, c. 13, it was provided, shall be punishable as any other of that laymen allowed their clergy her majesty's subjects. As to comshould be burned in the hand, and moners, also, they could have benefit should claim it only once; and as to of clergy only for the first offence; the clergy,—it became the practice and they were discharged by it from in cases of heinous and notorious the capital punishment only,-being guilt, to hand them over to the ordi- subject on the other hand, by 3 nary absque purgatione faciendâ, Geo. 1, c. 11, 6 Geo. 1, c. 23, and the effect of which was that they 19 Geo. 3, c. 74, not only to forfeiture were to be imprisoned for life (4 BI. of goods, but to burning in the hand, Com. 369); although afterwards, by whipping (except in manslaughter), 18 Eliz. c. 7, the delivering over to fine, and imprisonment, (or, in certhe ordinary was abolished alto- tain cases, transportation,) in lieu of gether. As to the nature of the the capital sentence. See 4 Bl. Com. offences to which the benefit of 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 (9)
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.
shall be exercised by the judges of (e) See Larkin's case, 1 Dears. C. the “ High Court of Justice," or by
five of them at the least, whereof (f) See 4 Rep. 45.
the “Lord Chief Justice of Eng(9) It forms one of the provisions land,” or the “Lord Chief Justice of the Supreme Court of Judicature of the Common Pleas," or the “Lord Act, 1873, that after the commence- Chief Baron of the Exchequer,” shall ment of that Act in November, 1874, be one (36 & 37 Vict. c. 66, s. 47). this jurisdiction as to reserved cases (1) Vide sup. p. 404.
C. R. 365.
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 (1).
(i) By 4 Geo. 4, c. 48, whenever in Crim. Ca. 15th ed. 534; Rosc. Dig. any person shall be convicted of C. C. 208. any capital felony, except murder, (k) In the case of a felony for and the court before whom he is which no other punishment is proconvicted shall be of opinion that, vided, there may, by 7 & 8 Geo. 4, under the particular circumstances c. 28, s. 8, and 20 & 21 Vict. c. 3, of the case, he is a fit subject for be awarded penal servitude to the the royal mercy, the court may ab- extent of seven years, or imprisonstain from pronouncing judgment of ment (with or without hard labour, death, and instead of pronouncing solitary confinement and whipping) it, only order it to be recorded ; to the extent of two years. In case which, being entered on record, is of a misdemeanor for which no to have the same effect as if the other punishment is provided, there judgment had been pronounced, and may be awarded, by the common the offender reprieved. By 6 & 7 law, fine and imprisonment at the Will. 4, c. 30, and 7 Will. 4 & 1 discretion of the court. Vict. c. 77, s. 3, the above exception (1) The punishment of whipping was in effect taken away; but both was inflicted, at common law, on of these last provisions are now (so persons of inferior condition, who far as respects the present point) were guilty of petty larceny, and repealed by 24 & 25 Vict. c. 95, and other smaller offences, but it seems the power of the court (under 24 & that, by the usage of the Star 25 Vict. c. 100, s. 2) to cause sen- Chamber, it was never to be intence of death to be recorded in flicted on a gentleman (1 Chit. C. cases of murder, appears to be some- L. 796). Blackstone enumerates what doubtful. See Criminal Acts, also (vol. iv, p. 377) the pillory, by Greaves, p. 30; Arch. Pl. & Ev. 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 at the expiration of the first sento the English law. But the first tence; and this, although the agof these is abolished by 7 Will. 4 & gregate term of imprisonment or 1 Vict. c. 23, and the two last are penal servitude, respectively, may disused.
exceed the term for which either (n) Whenever sentence is passed punishment could otherwise be for felony, on a person already im- awarded. (7 & 8 Geo. 4, c. 28, s. prisoned under sentence for another 10; 16 & 17 Vict. c. 99; 20 & 21 crime, the court may award impri- Vict. c. 3.) Moreover in all cases sonment for the subsequent offence where the court by any statute is to commence from the expiration of empowered or required to award a the first imprisonment (7 & 8 Geo. sentence of penal servitude exceed4, c. 28, s. 10). And where such per- ing seren years, the court may subson is already under sentence either stitute the term of seven years, or of imprisonment or penal servitude, else imprisonment, with or without the court, if empowered to sentence hard labour, to the extent of two to penal servitnde, may award it for years (9 & 10 Vict. c. 24; 20 & 21 the subsequent offence, to commence 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, salvâ mercandisâ suâ; et villanus eodem modo amerctetur, salvo wainagio suo.” A rule that obtained
(6) When the judges imposed a fine of 30,0001. on the Duke of Devonshire, for striking within the limits of one of his majesty's palaces, the house of lords declared that
their conduct was oppressive and illegal. (11 Harg. St. Tr. 136; and see as to Oates's case, 4 Harg. St. Tr. 106.)
(P) 2 Inst. 48.