rigour of capital punishment in the first offence that it exerted before the privilegium clericale was at all indulged; and which it still exerts upon a second offence in almost all kinds of felonies, unless committed by clerks actually in orders. But so tender is the law of inflicting capital punishment in the first instance for any inferior felony, that, notwithstanding by the marine law, as declared in statute 28 Hen. VIII, c. 15, the benefit of clergy is not allowed in any case whatsoever; yet, when offences are committed within the admiraltyjurisdiction, which would be clergyable if committed by land, the constant course is to acquit and discharge the prisoner. (o) (4) And, to conclude this head of inquiry, we may observe the following rules: 1. That in all felonies, whether new created or by common law, clergy is now allowable, unless taken away by express words of an act of parliament. (p) 2. That, where clergy is taken away from the principal, it is not of course taken away from the accessory, unless he be also particularly included in the words of the statute. (q) 3. That when the benefit of clergy is taken away from the offence (as in case of murder, buggery, robbery, rape, and burglary), a principal in the second degree being present, [*374] aiding and abetting the crime, is as well *excluded from his clergy as he that is principal in the first degree: but, 4. That, where it is only taken away from the person committing the offence (as in the case of stabbing, or committing larceny in a dwelling-house, or privately from the person), his aiders and abettors are not excluded; through the tenderness of the law which hath determined that such statutes shall be taken literally. (1)

IV. Lastly, we are to inquire what the consequences are to the party, of allowing him this benefit of clergy. I speak 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 affect 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.

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. (t) 3. That after burning, or its substitute, or pardon, he is discharged forever 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 statute 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. (w)

(0) Moor, 756. Fost. 288.

(p) 2 Hal. P. C. 330.

(s) 2 Hal. P. C. 388.
(w) 2 Hal. P. C. 389, 390.

(q) 2 Hawk. P. C. 342.
(t) 3 P. Wms. 487.

(r) 1 Hal. P. C. 529. Fost. 356, 357. (u) 2 Hal. P. C. 389. 5 Rep. 110.

(4) By subsequent statutes, offences committed on the high seas are to be considered and treated in the same manner as if committed on shore.

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CHAPTER XXIX.

OF JUDGMENT AND ITS CONSEQUENCES.

WE are now to consider the next stage of criminal prosecution, after trial and conviction are past, in such crimes and misdemeanors 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 anything to offer why judgment should not be awarded against him. And in case the defendant be found guilty of a misdemeanor (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) (1) And we may take notice, 1. That none of the statutes of jeofails, (b) for amendment of errors, 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, [ *376]

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 over-easy ear given to exceptions in indictments, than by their own innocence." (c) And yet no man was more tender of life than this truly excellent judge. (2)

A pardon, also, as has been before said, may be pleaded in arrest of judgment, and it has the same advantage when pleaded here as when pleaded upon arraignment, viz., the 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.

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 which hath been constantly mentioned, together with the crime itself, in some or other of the former chapters. Of 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, embow- [*377]. eling alive, beheading, and quartering; and in murder, a public dissection. And, in case of any treason committed by a female, the judgment is to be burned alive. But the humanity of the English nation has authorized, by a tacit consent, an almost general mitigation of such parts of these judgments as savour 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

(a) 4 Rep. 45.

(b) See book III, p. 407.

(c) 2 Hal. P. C. 193.

(1) See Casborus v. People, 13 Johns. 351; Commonwealth v. Goddard, 13 Mass. 455. (2) But now, formal defects apparent on the face of the indictment can only be taken advan tage of by demurrer or motion to quash, and not afterwards. Statute 14 and 15 Vic. c. 100, § 25.

(and those accidental or by negligence) of any person's being emboweled 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 movables, or both, or of the profits of lands for life: others induce a disability of holding offices or employinents, 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.

Disgusting as this catalogue may seem, it will afford pleasure to an English reader, and do honour to the English law, to compare it with that shocking apparatus of death and torment, to be met with in the criminal codes of almost every other nation in Europe. And it is moreover one of the glories of our English law, that the species, though not always the quantity or degree, of punishment is ascertained for every offence; and that it is not left in the breast of [*378] any *judge, nor even of a jury, to alter that judgment, which the law has beforehand ordained, for every subject alike, wihout respect of persons. For, if judgments were to be the private opinions of the judge, men would then be slaves to their magistrates; and would live in society without knowing exactly the conditions and obligations which it lays them under. And besides, as this prevents oppression on the one hand, so on the other it stifles all hopes of impunity or mitigation; with which an offender might flatter himself, if his punishment depended on the humour or discretion of the court. Whereas, where an established penalty is annexed to crimes, the criminal may read their certain consequence in that law; which ought to be the unvaried rule, as it is the inflexible judge, of his actions.

The discretionary fines and discretionary length of imprisonment, which our courts are enabled to impose, may seem an exception to this rule. But the general nature of the punishment, viz., by fine or imprisonment, is, in these cases, fixed and determinate: though the duration and quantity of each must frequently vary, from the aggravations or otherwise of the offence, the quality and condition of the parties, and from innumerable other circumstances. The quantum, in particular, of pecuniary fines, neither can, nor ought to be ascertained by an 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 indifference to another's. Thus the law of the twelve tables at Rome fined every person that struck another five-and-twenty denarii: this 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 statute law has not, therefore, often ascertained the quantity of fines, nor the common law ever; it directing such an offence to 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

[*379] court may seem, it is far from being wholly arbitrary; but its discretion is regulated by law. For the bill of rights (d) has particularly declared, that excessive fines ought not to be imposed, nor cruel and unusual punishments inflicted (which had a retrospect to some unprecedented proceedings in the court of king's bench, in the reign of King James the Second): and the same statute farther declares, that all grants and promises of fines and forfeitures of

(d) Stat. 1 W. and M. st. 2, c. 2.

particular persons before conviction, are illegal and void. Now the bill of rights was only declaratory of the old constitutional law: and accordingly we find it expressly holden, long before, (e) that all such previous grants are void; 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.

The reasonableness of fines in criminal cases has also been usually regulated by the determination of magna carta, 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 mercandisa sua; et villanus eodem modo amercietur, salvo wainagio suo." A rule that obtained even in Henry the Second's time, (f) and means only, that no man shall have a larger amercement imposed upon him, than his circumstances or personal estate will bear; saving to the landholder his contenement, (3) or land; to the trader his merchandize; and to the countryman his wainage, or team and instruments of husbandry. In order to ascertain which, the great charter also directs that the amercement, which is always inflicted in general terms (" sit in misericordia"), shall be set, ponatur, or reduced to a certainty, by the oath of good and lawful men of the neighbourhood. Which method of liquidating the amercement to a precise sum, was usually performed in the superior courts by the assessment or affeerment of the coroner, a sworn officer chosen by the neighbourhood, under the equity of the statute Westm. 1, c. 18; and then the judges estreated them into the exchequer. (g) But in the court-leet and court-baron it is still performed by *affeerors, or suitors sworn to affeere, that is, tax and moderate the general amercement ac[*380] cording to the particular circumstances of the offence and the offender. (h) Amercements imposed by the superior courts on their own officers and ministers were affeered by the judges themselves; but when a peculiar mulct was inflicted by them on a stranger (not being party to any suit), it was then denominated a fine; (i) and the ancient practice was, when any such fine was imposed, to inquire by a jury "quantum inde regi dare valeat per annum, salva sustentatione sua, et uxoris, et liberorum suorum." (j) And since the disuse of such inquest, it is never usual to assess a larger fine than a man is able to pay, without touching the implements of his livelihood; but to inflict corporal punishment, or a limited imprisonment, instead of such fire as might amount to imprisonment for life. And this is the reason why fines in the king's court are frequently denominated ransoms, because the penalty must otherwise fall upon a man's person, unless it be redeemed or ransomed by a pecuniary fine; (k) according to an ancient maxim, qui non habet in crumena luat in corpore. Yet, where any statute speaks both of fine and ransom, it is holden that the ransom shall be treble to the fine at least (1) (4)

When sentence of death, the most terrible and highest judgment in the laws of England, is pronounced, the immediate inseparable consequence from the common law is attainder. For when it is now clear beyond all dispute, that

(e) 2 Inst. 48. (f) Glanv. 1. 9 cc. 8 and 11. (g) F. N. B. 76.
(h) Thetaffeerer's oath is conceived in the very terms of magna carta. Fitzh. Survey, ch. 11.
(i) 8 Rep. 40. (j, Gilb. Exch. c. 5. (k) Mirr. c. 5, § 3. Lamb, Eirenarch, 575.

(1) Dyer, 232.

(3) [Lord Coke says, that "contenement signifieth his countenance, as the armour of a soldier is his countenance, the books of a scholar his countenance, and the like." 2 Inst. 28. He also adds that, "the wainagium is the countenance of the villein, and it was great reason to save his wainage, for otherwise the miserable creature was to carry the burden on his back." Id.]

(4) In any case, the judgment must be the same which the law allows, and not other or different; for if it is it will be erroneous, and the prisoner may have it reversed, even though it be not so severe as should have been inflicted. Bourne v. Rex, 7 A. and E. 58; Hartung e. People, 16 N. Y. 167: Elliott v. People, 13 Mich. 355. But if the punishment consist of two severable things. as fine and imprisonment, the prisoner cannot be heard to complain that only one imposed. See Kane v.People 8 Wend. 203.

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the criminal is no longer fit to live upon the earth, but is to be exterminated as a monster and a bane to human society, the law sets a note of infamy upon him puts him out of its protection, and takes no farther care of him than barely to see him executed. (5) He is then called attaint, attinctus, stained or blackened. He is no longer of any credit or reputation; he cannot be a witness in any court: neither is he capable of performing the functions of another man: for, by an anticipation of his punishment, he is already dead in law. (m) This is after judgment; for there is great difference between a man convicted and attainted: though they are frequently through inaccuracy confounded together. [*381] After conviction *only a man is liable to none of these disabilities; for there is still in contemplation of law a possibility of his innocence. Something may be offered in arrest of judgment; the indictment may be erroneous, which will render his guilt uncertain, and thereupon the present conviction may be quashed: he may obtain a pardon, or be allowed the benefit of clergy: both which suppose some latent sparks of merit, which plead in extenuation of his fault. But when judgment is once pronounced, both law and fact conspire to prove him completely guilty; and there is not the remotest possibility left of anything to be said in his favour. Upon judgment therefore of death, and not before, the attainder of a criminal commences: or upon such circumstances as are equivalent to judgment of death; as judgment of outlawry on a capital crime, pronounced for absconding or fleeing from justice, which tacitly confesses the guilt. And therefore either upon judgment of outlawry, or of death, for treason or felony, a man shall be said to be attainted.

The consequences of attainder are forfeiture and corruption of blood.

I. Forfeiture is two-fold; of real and personal estates. First, as to real estates by attainder in high treason (n) a man forfeits to the king all his lands and tenements of inheritance, whether fee-simple or fee-tail, and all his rights of entry on lands or tenements which he had at the time of the offence committed, or at any time afterwards, to be forever vested in the crown; and also the profits of all lands and tenements, which he had in his own right for life or years, so long as such interest shall subsist. This forfeiture relates backwards to the time of the treason committed: so as to avoid all intermediate sales and incumbrances, (0) but not those before the fact: and therefore a wife's jointure is not forfeitable for the treason of her husband; because settled upon her [*382] previous to the treason committed. But her dower *is forfeited by the express provisions of statute 5 and 6 Edw. VI, c. 11. And yet the husband shall be tenant by the curtesy of the wife's lands, if the wife be attainted of treason: (p) for that is not prohibited by the statute. But, though after attainder the forfeiture relates back to the time of the treason committed, yet it does not take effect unless an attainder be had, of which it is one of the fruits; and therefore if a traitor dies before judgment pronounced, or is killed in open rebellion, or is hanged by martial law, it works no forfeiture of his lands: for ne never was attainted of treason. (7) But if the chief justice of the king's bench (the supreme coroner of all England) in person, upon the view of the body of one killed in open rebellion, records it and returns the record into his own court, both lands and goods shall be forfeited. (r)

The natural justice of forfeiture or confiscation of property, for treason, (s) is founded on this consideration: that he who hath thus violated the fundamental principles of government, and broken his part of the original contract between king and people, hath abandoned his connections with society; and hath no longer any right to those advantages, which before belonged to him purely as a member of the community; among which social advantages, the right of transferring or transmitting property to others is one of the chief. Such forfeitures

(m)3 Inst. 213. (n) Co. Litt. 392; 3 Inst. 19; 1 Hal. P. C. 240 ; 2 Hawk. P. C. 448. (0) 3 Inst. 211. (p) 1 Hal. P. C. 359. (g) Co. Litt. 13. (r) Rep. 57. (8) See book I, page 299.

(5) [This must be taken with some qualification; for the person of an attainted felon is still under the protection of the law, and to kill him without warrant would be murder. Fost. 73.]