but the restoring of the law to the same 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 admiralty-jurisdiction, which would be clergyable if committed by land, the constant course is to acquit and discharge the prisoner. (o)1 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. (2) 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 [*374] 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. (r)

IV. Consequences of benefit of clergy.- 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. (8) 2. That, after conviction, and till he receive 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 statutes 8 Eliz. c. 4 and 18 Eliz. c. 7. 4. That, by the burning, or its substi

(q) 2 Hawk. P. C. 842.
(t) 3 P. Wms. 487.

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

(8) 2 Hal. P. C. 388.

(0) Moor. 756. Fost. 288.
(r) 1 Hal. P. C. 529. Fost. 356, 857.

1 By subsequent statutes, offenses considered and treated in the same committed on the high seas are to be manner as if committed on shore.

tute, 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)

OF JUDGMENT AND ITS CONSEQUENCES.

We are now to consider the next stage of criminal prosecution, after trial and conviction are passed, 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.

Staying judgment after verdict.-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 judg ment 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 judg ment; and, if he absconds, he may be prosecuted even to outlawry. Arrest of judgment.- 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

Amendments. And we may take notice, 1. That none of the statutes of jeofails, (b) for amendment of errors, extend to indictments [*376] 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 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.

(u) 2 Hal. P. C. 389. 5 Rep. 110, (a) 4 Rep. 45.

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

(b) See book III, p. 407. 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

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

be taken advantage of by demurrer or motion to quash, and not afterwards. Statute 14 and 15 Vic., c. 100, § 25; [Maynard v. People, 135 Ill. 416.]

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.

The judgment or sentence.- 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 affect- [*377] ing the king's person or government, emboweling 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 (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 forfeit ure of lands, or movables, 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 last 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 labor in the house of correction, or otherwise, the pillory, the stocks, and the ducking-stool.

Comparison with foreign law.-Disgusting as this catalogue may seem, it will afford pleasure to an English reader, and do honor 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,

[*378] 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 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 a 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 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.

Cruel and unusual punishment.-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 free man shall be amerced for a small offence, only according to its measure; and for a great offence, only according to its magnitude, saving his land; and the merchant in the same manner, saving his merchandise; and a villain shall be amerced in the same manner, saving his wainage). 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, 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:" let him be at the mercy), shall be set, ponatur, or reduced to a certainty, by the oath of good and lawful men of the neighborhood. 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 neighborhood, under the equity of the statute Westm. 1, c. 18; and then the judges estreated them into the exchequer. (9) But in the court-leet and court-baron it is still performed by *affeerors, [*380]

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" (how much he could pay a year to the king, saving his maintenance, and the maintenance of his wife and children). (5) 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

(f) Glanv. 1. 9, cc. 8 and 11.

(g) F. N. B. 76.

(4) The affeeror's oath is conceived in the very terms of magna carta. Fitzh. Survey, ch. 11. (i) 8 Rep. 40. (j) Gilb. Exch. c. 5.

1 Cruel and unusual punishments are forbidden in the United States by constitutional provisions. See Barker v. People, 3 Cow. 686; State v. Danforth, 3 Conn. 112; Commonwealth v. Wyatt, 6 Rand. 694; Huber v. Reiley, 53 Penn. St. 112; Garcia v. Territory, 1 New

Mex. 415. [This does not mean that no new or different punishment or mode of inflicting it shall be adopted, e. g., electrocution. In re Kemmler, 136 U.S. 436; Guthrie's Fourteenth Amendment, p. 63.]