CHAPTER XXIII. OF JUDGMENT AND ITS CONSEQUENCES. We are now to consider the next stage of criminal prosecutions after trial and conviction are past,—which is that of judgment (a). For when, upon a charge of felony, 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,) 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 no corporal punishment can in any case be awarded against a defendant, unless he be personally present (b). [But whenever he appears in person, he may at this period offer any exceptions to the indictment, in arrest of judgment (c);] as for some defect (a) Vide sup. p. 424. (b) Hawk. P. C. b. 2, c. 48, s. 17. The defendant must in all cases be personally before the court, in order to move in arrest of judgment. (Com. Dig. Indictment, N.) And to enable him so to move, he must, in capital cases, be asked, before judgment, "what he has to say why judgment of death should "not be pronounced against him." (Ibid.) (e) At this period of the pro ceedings it was, that the prisoner formerly might avoid a judgment of death, by praying the benefit of clergy; it being more usual to resort to this, after conviction, than by way of declinatory plea to the indictment [as to which, vide sup. p. 482, n. (c)]. This benefit of clergy constituted, in former times, so remarkable a feature in our criminal law, and a general acquaintance with its nature is still so important for the illustration of our books; 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 that it may be desirable to subjoin here some further 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 Reeves's Hist. Eng. L. vol. 2, pp. 14, 134; 25 Edw. 3, st. 3, c. 4; and as to canonical purgation, sup. vol. 111. p. 450, n. (d)]: 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 faciendâ, 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 senSee 4 Bl. Com. p. 371. tence. 1 now, as we have seen, defects of a merely formal kind are, in some cases, wholly immaterial; and, 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 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 of the superior courts; and in the meantime to postpone the judgment, or respite the execution of it, as may be thought fit (g). [A pardon also, as has been before said (h), may be pleaded in arrest of judgment;] and (in case of a capital (d) Vide sup. pp. 446 et seq. 485. (e) An instance of the kind of objection which can still be made in arrest of judgment, is where, in a count for receiving stolen goods, there is no allegation that the person charged knew they were stolen. (See Larkin's case, 1 Dears. C. C. R. 365.) (f) See 4 Rep. 45. (g) The judges, when sitting to dispose of special cases on questions reserved, are sometimes spoken of as the "Court of Criminal Appeal,” and the term has been adopted in the 16 & 17 Vict. c. 30. (See sect. 4.) As to the course of practice to be observed on the hearing of such special case, see Reg. Gen. 1st June, 1850. As to the questions which may be reserved, see the case of The Queen v. Mellor, 27 L. J. (M. C.), 121. (h) Vide sup. p. 471. felony) it [has the same advantage when pleaded here, as when pleaded upon arraignment, viz. the saving the attainder. And, certainly, upon all accounts, when a man hath obtained a pardon, he is in the right to plead it as soon as possible.] [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, in some instances, death, but usually imprisonment or penal servitude: the imprisonment being frequently accompanied (both in misdemeanor and felony) with hard labour-to which whip (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 a 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 ping (1) and solitary confinement, to the extent presently to be mentioned, are also sometimes added. 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, 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 (m). The judge, however, cannot award either death or penal servitude, for any offence to which such punishment is not specifically made applicable by the law itself. And by the Bill of Rights it is declared as one of the antient rights and liberties of the subjects of this (1) The punishment of whipping (m) Whenever sentence is passed 4, c. 28, s. 10). And where such per- |