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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 (1).
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 (v) (5).
(4) See the present law as to pardon, post, 398, et seq.
(5) The various statutes mentioned in the course of this chapter, as relating to benefit of clergy, have been either expressly repealed or rendered inoperative, by the passing of the recent statute, 7 & 8 Geo. IV. c. 28; sect. 6 of which enacts, that benefit of clergy with respect to persons convicted of felony shall be abolished; but that no. thing therein contained shall prevent
the joinder in any indictment of any counts which might have been joined before the passing of the Act.
Sect. 7 of the same statute enacts, that no person convicted of felony sball suffer death, unless it be for some fc. lony which was excluded from the benefit of clergy before, or on the first day of the (then) present session of parliament, or which has been or shall be made punishable with death by some 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 convicts 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 felonies; 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.
here your contation,
lows upon con. viction, unless some motion is made in arrest thereof.
Judgment fol. We are now to consider the next stage of criminal prosecu
Sa tion, after trial and conviction are past, in such crimes and
within the benefit of clergy: which is that of judgment. For
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.
pleaded in ar
ment, and saves
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 judgpleaded 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 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 been materially altered by the statute 7 Geo. IV. c. 64, S 20, which see, set out, ante, 306, note (8), and by sect. 21 of the same statute, which enacts, that no judgment after verdict upon any indictment or information for any felony or misdemeanor, shall be stayed, or reversed, for want of a similiter ; nor by reason that the jury process has been awarded to a wrong officer upon an insufficient suggestion; nor for any misnomer or misdescription of the officer returning such process, or of any of the jurors; nor because any person has served upon the jury who has not been returned as a juror by the sheriff or other officer; and that where the of. fence charged has been created by any statute, or subjected to a greater degree of punishment, or excluded from the benefit of clergy by any statute, the indictment or information shall, after verdict, be held sufficient to warrant the punishment prescribed by the statute, if it describe the offence in the words of the statute. As to amend ments of indictments, &c. vide ante, 306, note (7), 307, note (11).
(2) Formerly a pardon could not be pleaded, unless it were by Act of Parliament, or under the great seal ; and the king's warrant under the sign manual was not pleadable, as now; Rer v. Beaton, 1 Bl. R. 479; Car. Cr. L. 104; see further on this subject, post, 398, et seq.
(3) By 4 Geo. IV. c. 48, § 1, in cases of convictions of capital felonies, except murder, the court may abstain from pronouncing judgment of death, and may order it to be entered of record. Vide ante, 19, note (16). A man, upon whom sentence of death has passed, ought not, while under that sentence, to be brought up to receive judgment for another felony; although he was under that sentence when he was tried for the other felony, and did not plead his prior attainder. Anonymous case, R. & R. C. C. 268. On an indictment against two, for a joint offence, if they are found guilty separately, upon a pardon or nolle prosequi as to the one who stands second upon the verdict, judgment may be given against the other; Rer v. Hempstead, id. 344. Formerly in cases of indict
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 removed into the court of King's Bench by certiorari and tried at the assizes, the judges, before whom such trials were, had no power of pronouncing judg. ment upon the parties convicted before them, that power being confined to the court when sitting in banc at West minster. This evil, for such it had
long been felt to be, was remedied by statute 1 W. 4, c. 70, $ 9, which see set out ante, 265 n. (9)
(4) Vide ante, 93, notes (20),(21). (5) Vide ante, 202, note (55.)
(6) Vide ante, 93, note (21), 204, note (56).
(7) The law upon this subject has recently undergone various alterations,