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Cromwell. For, if that were the case, the Jews are still in the same *374] predicament, which every day's experience will contradict: the statute of queen Anne having certainly made no alteration in this respect; it only dispensing with the necessity of reading in those persons who, in case they could read, were before the act entitled to the benefit of their clergy.
III. The third point to be considered is, for what crimes the privilegium clericale or benefit of clergy is to be allowed. And it is to be observed that neither in nigh treason, nor in petit larceny, nor in any mere misdemeanours, it was indulged at the common law; and therefore we may lay it down for a rule that it was allowable only in petit treason and capital felonies, which for the most part became legally entitled to this indulgence by the statute de clero, 25 Edw. III. st. 3, c. 4, which provides that clerks convict for treasons or felonies, touching other persons than the king himself or his royal majesty, shall have the privilege of holy church. But yet it was not allowable in all felonies whatsoever; for in some it was denied even by the common law,-viz., insidiatio viarum, or lying in wait for one on the highway; depopulatio agrorum, or destroying and ravaging a country; (m) and combustio domorum, or arson, that is, the burning of houses:(n) all which are a kind of hostile acts, and in some degree border upon treason. And, further, all these identical crimes, together with petit treason, and very many other acts of felony, are ousted of clergy by particular acts of parliament, which have in general been mentioned under the particular offences to which they belong, and therefore need not be here recapitulated. Upon all which statutes for excluding clergy I shall only observe that they are nothing else but the restoring of the law to the same rigour of capital punishment in the first offence that is 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 **373] 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) 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.(g) 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, 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 aider and abettors are not excluded, through the tenderness of the law, which hath determined that such statutes shall be taken literally.(r)
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.
)2 Hal. P. C. 333.
1 Hal. P. C. 346.
Moor. 756. Fost. 288.
(P) 2 Hal. P. C. 330.
(9) 2 Hawk. P. C. 342.
() 1 Hal. P. C. 529. Fost. 356, 357.
But now, by 39 Geo. III. c. 37, offences committed on the high seas are to be con sidered and treated in the same manner as if committed on shore; and see the 43 Geo. III. c. 113, s. 6; 56 Geo. III. c. 27, s. 3.--CHITTY.
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 substi- [**374 tutes, 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 statutes 8 Eliz. c. 4 and 18 Eliz. c. 7. 4. That by 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 subsequently 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)5
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 misdemeanours as are [*375 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 misdemeanour, (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
(*) 2 Hal. P. C. 388.
(*) 2 Hal. P. C. 389. 5 Rep. 110.
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 nothing therein contained shall prevent the joinder in any indictment of any counts which might have been joined before the passing of the act.
Section 7 of the same statute enacts that no person convicted of felony shall suffer death, unless it be for some felony 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 shal be made punishable with death by some statute passed after that day.
The 6 Geo. IV. c. 25, entitled “An act for defining the rights of capital convicts who receive pardon, and of convicts after having been punished for clergyable felonies, for placing clerks in orders on the same footing with other persons as to felonies, and for limiting the effect of the benefit of clergy," had previously enacted, by section 1, that in case of free pardons the prisoner's discharge, and in case of conditional pardons the performance of the condition, should have the effect of a pardon under the great seal; by section 2, that offenders convicted of clergyable felonies enduring the punishment adjudged, such punishment should have the effect of burning in the hand; by section 3, that clerks should be liable to punishment as if not in orders; and, by section 4, that the allowance of the benefit of clergy to any person who should, after the passing of that act be convicted of any felony, should not render the person to whom such benefit was allowed dispunishable for any other felony by him or her committed before the time of such allowance, any law, custom, or usage to the contrary notwithstanding. -CHITTY.
a capital or inferior conviction, he may at this period, as well as at his arraign. ment, 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,(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 in favour of life great strictness has at all times been observed in *every *376] 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.1
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, embowelling 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 bein 'usually allowed to such traitors as are con
*377] demned to be drawn; and there being very few instances (and those accidental or by negligence) of any person's 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 confisca tion, by forfeiture of lands, or movables, or both, or of the profits of lands for
(a) 4 Rep. 45.
() See book iii. page 407.
(e) 2 Hal. P. C. 193.
The law upon this subject has been materially altered by the statute 7 Geo. IV. c. 64, s. 20, and by sect. 21 of the same statute, which enacts that no judgment after verdict upon any indictment or information of any felony or misdemeanour shall be stayed or reversed for want of a similiter; nor by reason that the juryprocess 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 offence 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.-CHITTY.
Many of the grounds of objections enumerated in this statute have been, moreover, by subsequent provisions, either wholly removed, by rendering the averments either wholly unnecessary, (14 & 15 Vict. c. 100,) by allowing amendments at the trial, (11 & 12 Vict. c. 46, 12 & 13 Vict, c. 45, 14 & 15 Vict. c. 100,) or by requiring all objections for formal defects apparent on the face of an indictment to be taken before the jury are sworn. 14 & 15 Vict. c. 100.-STEWART.
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 of fender, 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 any judge, nor even of a jury, to alter that judgment, which the law has beforehand ordained for every subject alike, without 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 punish[*378 ment 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 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 further declares that all grants and promises of [*379 fines and forfeitures of 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 misbe
haviour 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,(ƒ) 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' or land; to the trader his merchandise; 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 according to the particular circumstances of the offence and the offender. (h) Amercements imposed by the superior *380] 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 antient 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 suo rum."(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 fine 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 antient 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)
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 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 further care of him than barely to see him executed. 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. After *381] 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
() Glanv. 1. 9, c. 8 and 11.
() F. N. B. 76.
(4) The affeeror's oath is conceived in the very terms of magna charta. Fitzh. Survey, c. 11. () 8 Rep. 40.
() Gilb. Exch. c. 5.
Mirr. c. 5, 23. Lamb. Eirenarch, 575.
2 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." Ibid.-CHRISTIAN.
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.-CHITTY.