aider and abettors are not excluded; through the tenderness of the law, which hath determined that such statutes shall be taken literally (r).

The conse

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. quences 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 (1). 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 sta tutes 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 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 anv substitute for it, which others are entitled to after it (w) (8), (9).

(r) 1 Hal. P. C. 529. Fost. 356, 357. (s) 2 Hal. P. C. 388.

(t) 3 P. Wms. 487.

(8) 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various statutes mentioned in the course of this chapter, as relating to benefit of clergy, have been either expressly repealed, or rendered inoperative, by the passing of the recent statute, 7 and 8 Geo. IV. c. 28; 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 bave 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 shall 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

(u) 2 Hal. P. C. 389. 5 Rep. 110.
(w) 2 Hal. P. C. 389, 390.

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 pu. nishment, 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.

(9) In New-York there are two state-prisons, and there is in each county a county gaol: in the last, persons convicted of the smaller offences are confined. The principle adopted in all is that of "social silent labour:" the prisoners labouring together, but never speaking to any one without the permission of their keepers. (2 R. S. 755, § 11, &c.) In these prisons are confined all persons guilty of any offences below murder, treason, or arson in the first degree; which alone are punishable with death. (2 R. S. 656, § 1, &c.) The principle of absolute silence was not introduced till recently into any prison but that at Auburn; reasonable hopes are entertained that it will prove beneficial.

CHAPTER XXIX.

OF JUDGMENT AND ITS CONSEQENCES.

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 any thing 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 (1). 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 (b), for amendment of errors, extend to indictments or proceedings in criminal cases; *and [*376] 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 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) 4 Rep. 45.

(b) See Book III. page 407.

(1) Outlawry is abolished in New-York, except on convictions for treason. (2 R. S. 745, § 20.)

(2) The law upon this subject has been materially altered by the statute 7 Geo. IV. c. 64. 20, which see, set out, ante, 306, note (12), and by 21 of the same statute, which enacts, that no judgment after verdict upon any indictment or information of 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 re

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

turning 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 pu nishment, or excluded from the benefit of clergy by any statute, the indictment or information shall, after verdict, by held sufficient to warrant the punishment prescribed by the statute, if it describe the offence in the words of the statute. As to amendments of indictments, &c. vide ante, 306, note 12. See id. note 11, law of New-York.

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 dis[*377] grace, 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 (3); and in murder, a public dissection. And, in case of any treason committed by a female, the judgment is to be burned alive (3). But the humanity of the English nation has authorized, by a tacit consent, an almost general mitigation of such parts of these judgments, as savours of torture or cruelty: a sledge or hurdle being usually allowed to such traiors as are condemned 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 pu nishments 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.

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; [*378] and that it is not left in the breast of any judge, nor ever. 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 punishment depended on the humour or discretion of (3) See ante, p. 93, & p. 204, these punish- of inflicting the punishment of death is by ments altered. In New-York, the only mode hanging. (2 R. S. 659, § 25.)

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 exemption 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 [379] 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 farther declares, that all grants and promises of 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 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 (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 (4), 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, (f) Glanv. 1. 9, c. 8 & 11.

(d) Stat. 1 W. & M. st. 2, c. 2. (e) 2 Inst. 48.

(4) 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 villain, and it was great reason to save his wainage, for otherwise the miserable creature was to carry the burden on his back." Ibid.

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 [*380] 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 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 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 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).

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 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 attained: though

they are frequently through inaccuracy confounded together. Af[381] ter 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

(g) F. N. B. 76.

(A) The affeeror's oath is conceived in the very terms of magna chartą. Fitzh. Survey, ch. 11. (i) 8 Rep. 40.

(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

(j) Gilb. Exch. c. 5.

(k) Mirr. c. 5, § 3. Lamb. Eirenarch. 575.
(2) Dyer, 232.

(m) 3 Inst. 213.

kill him without warrant would be murder. Fost. 73.

See note 6. p. 395. post