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not of the branding, fine, whipping, imprisonment, or transportation; which are rather concomitant conditions, than consequences of receiving this indulgence. The consequences are such as effect his present interest, and future credit and capacity; as having been once a felon, but now purged from that guilt by the privilege of clergy; which operates as a kind of statute pardon (4).
And, we may observe, 1. That by this conviction he forfeits all his goods to the king; which, being once vested in the crown, shall not afterwards be restored to the offender(s). 2. That, after conviction, and till he receives the judgment of the law, by branding or some of its substitutes, or else is pardoned by the king, he is to all intents and purposes a felon, and subject to all the disabilities and other incidents of a felon (). 3. That, after burning or its substitute, or pardon, he is discharged for ever of that and all other felonies before committed, within the benefit of clergy; but not of felonies from which such benefit is excluded : and this by statutes 8 Eliz. c. 4, and 18 Eliz. c. 7. 4. That by the burning, or its substitute, or the pardon of it, he is restored to all capacities and credits, and the possession of his lands, as if he had never been convicted (u). 5. That what is said with regard to the advantages of commoners and laymen, subsequent to the burning in the hand, is equally applicable to all peers and clergymen, although never branded at all, or subjected to other punishment in its stead. For they have the same privileges, without any burning, or any substitute for it, which others are entitled to after it (o) (5).
(s) 2 Hal. P. C. 388. (1) 3 P. Wms. 487.
(u) 2 Hal. P. C. 389; 5 Rep. 110. (r) 2 Hal. P. C. 389, 390.
(4) See the present law as to par- the joinder in any indictment of any don, post, 398, et seq.
counts which might have been joined (5) The various statutes mentioned before the passing of the Act. in the course of this chapter, as relating Sect. 7 of the same statute enacts, to benefit of clergy, have been either that no person convicted of felony shall expressly repealed or rendered inope. suffer death, unless it be for some ferative, by the passing of the recent sta- lony which was excluded from the betute, 7 & 8 Geo. IV. c. 28; sect. 6 of nefit of clergy before, or on the first which enacts, that benefit of clergy day of the (then) present session of with respect to persons convicted of parliament, or which has been or shall felony shall be abolished; but that no- be made punishable with death by some thing therein contained shall prevent statute passed after that day.
The 6 Geo. IV. c. 25, intituled, gyable felonies enduring the punish“ An Act for defining the rights of ca- ment adjudged, such punishment should pital conviets who receive pardon, and have the effect of burning in the hand; of convicts after having been punished by sect. 3, that clerks should be liable for clergyable felonios; for placing to punishment as if not in orders; and clerks in orders on the same footing by sect. 4, that the allowance of the with other persons, as to felonies; and benefit of clergy to any person who for limiting the effect of the benefit of should, after the passing of that Act, be clergy;" had previously enacted, by convicted of any felony, should not sect. I, that in case of free pardons, render the person to whom such bethe prisoner's discharge, and in case of nefit was allowed, dispunishable for any conditional pardons, the performance of other felony by him or her committed the condition, should have the effect of before the time of such allowance, any a pardon under the great seal; by law, custom, or usage, to the contrary, sect. 2, that offenders convicted of cler- notwithstanding.
OF JUDGMENT AND ITS CONSEQUENCES.
some motion is made in arrest thereof.
We are now to consider the next stage of criminal prosecuJudgment fol. Voices coupon less tion, after trial and conviction are past, in such crimes and
misdemesnors as are either too high or too low to be included within the benefit of clergy: which is that of judgment. For when, upon a capital charge, the jury have brought in their verdict guilty, in the presence of the prisoner; he is either immediately, or at a convenient time soon after, asked by the court, if he has any thing to offer why judgment should not be awarded against him. And in case the defendant be found guilty of a misdemesnor, (the trial of which may, and does usually, happen in his absence, after he has once appeared) a capias is awarded and issued, to bring him in to receive his judgment; and, if he absconds, he may be prosecuted even to outlawry. But whenever he appears in person, upon either a capital or inferior conviction, he may at this period, as well as at his arraignment, offer any exceptions to the indictment, in arrest or stay of judgment: as for want of sufficient certainty in setting forth either the person, the time, the place, or the offence. And, if the objections be valid, the whole proceedings shall be set aside; but the party may be indicted again (a). And we may take notice, 1. That
none of the statutes of jeofails (6), for amendment of errors, [*376] extend to indictments or proceedings in *criminal cases; and
therefore a defective indictment is not aided by a verdict, as defective pleadings in civil cases are. 2. That, in favour of life, great strictness has at all times been observed, in every point of an indictment. Sir Matthew Hale, indeed, complains, “ that this strictness is grown to be a blemish and inconvenience in the law, and the administration thereof; for that more offenders escape by the overeasy ear given to exceptions in indictments, than by their own innocence (c).”
(a) 4 Rep. 45
(c) 2 Hal. P. C. 193.
376 JUDGMENT AND ITS CONSEQUENCES. And yet no man was more tender of life than this truly excellent judge (1).
A pardon, also, as has been before said, may be pleaded Pardon may be in arrest of judgment: and it has the same advantage when rest of judg: pleaded here, as when pleaded upon arraignment; viz. the attainder. saving the attainder, and, of course, the corruption of blood : which nothing can restore but parliament, when a pardon is not pleaded till after sentence. And, certainly, upon all accounts, when a man hath obtained a pardon, he is in the right to plead it as soon as possible (2).
Praying the benefit of clergy may also be ranked among the motions in arrest of judgment: of which we spoke largely in the preceding chapter.
If all these resources fail, the court must pronounce that judgment, which the law hath annexed to the crime, and sentence must
be passed. which hath been constantly mentioned, together with the crime itself, in some or other of the former chapters (3). Of
When judgment is not arrested,
(1) The law upon this subject has (2) Formerly a pardon could not be been materially altered by the statute pleaded, unless it were by Act of Par7 Geo. IV. c. 64, $ 20, which see, set liament, or under the great seal; and out, ante, 306, note (8), and by sect. the king's warrant under the sign ma21 of the same statute, which enacts, nual was not pleadable, as now; Rer v. that no judgment after verdict upon Beaton, 1 Bl. R. 479; Car. Cr. L. any indictment or information for any 104; see further on this subject, post, felony or misdemeanor, shall be stayed, 398, et seq. or reversed, for want of a similiter ; nor (3) By 4 Geo. IV. c. 48, § 1, in by reason that the jury process has been cases of convictions of capital felonies, awarded to a wrong officer upon an in- except murder, the court may abstain sufficient suggestion; nor for any mis- from pronouncing judgment of death, nomer or misdescription of the officer and may order it to be entered of record. returning such process, or of any of the Vide ante, 19, note (16). A man, jurors; nor because any person has upon whom sentence of death has served upon the jury who has not been passed, ought not, while under that senreturned as a juror by the sheriff or tence, to be brought up to receive judgother officer; and that where the of- ment for another felony; although he fence charged has been created by any was under that sentence when he was statute, or subjected to a greater degree tried for the other felony, and did not of punishment, or excluded from the plead his prior attainder. Anonymous benefit of clergy by any statute, the in- case, R. & R. C. C. 268. On an indictment or information shall, after dictment against two, for a joint ofverdict, be held sufficient to warrant fence, if they are found guilty sepathe punishment prescribed by the sta- rately, upon a pardon or nolle prosequi tute, if it describe the offence in the as to the one who stands second upon words of the statute. As to amend- the verdict, judgment may be given ments of indictments, &c. vide unte, against the other ; Rer v. Hempstead, 306, note (7), 307, note (11). id. 344. Formerly in cases of indicta
these some are capital, which extend to the life of the offender, and consist generally in being hanged by the neck till dead; though in very atrocious crimes other circumstances of terror, pain, or disgrace, are superadded : as, in treasons *of all kinds, being drawn or dragged to the place of execution; in high treason affecting the king's person or government, embowelling alive, beheading, and quartering (4), and, in murder, a public dissection (5). And, in case of any treason committed by a female, the judgment is to be burned alive (6). But the humanity of the English nation has authorized, by a tacit consent, an almost general mitigation of such part of these judgments as savours of torture or cruelty: a sledge or hurdle being usually allowed to such traitors as are condemned to be drawn; and there being very few instances and those accidental or by negligence,) of any persons being embowelled or burned, till previously deprived of sensation by strangling. Some punishments consist in exile or banishment, by abjuration of the realm, or transportation: others in loss of liberty, by perpetual or temporary imprisonment. Some extend to confiscation, by forfeiture of lands, or moveables, or both, or of the profits of lands for life: others induce a disability of holding offices or employments; being heirs, executors, and the like. Some, though rarely, occasion a mutilation or dismembering, by cutting off the hand or ears: others fix a lasting stigma on the offender, by slitting the nostrils, or branding in the hand or cheek. Some are merely pecuniary, by stated or discretionary fines : and, lastly, there are others, that consist principally in their ignominy, though most of them are mixed with some degree of corporal pain ; and these are inflicted chiefly for such crimes, as either arise from indigence, or render even opulence disgraceful. Such as whipping, hard labour in the house of correction, or otherwise, the pillory, the stocks, and the ducking-stool (7).
ments for felonies or misdemeanors re. long been felt to be, was remedied by