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And we may observe, 1. That by his conviction he forfeits all his goods to the king, which, being once vested in the crown, shall not afterward be restored to the offender. 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 statutes 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." 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.x10

2 Hal., P. C., 388. t 3 P. Wms., 487.

(10) The crimes which still remain subject to capital punishment are stated in the Appendix (A.). It will be seen from the preceding notes to this volume that there is scarcely a single felony for which the punishment of transportation, either for life or for a longer or shorter term of years, may not be inflicted by

2 Hal., P. C., 389; 5 Rep., 110. * 2 Hal., P. C., 389, 390.

virtue of some statute; and that in the few cases in which no punishment is provided by the statute relating to the particular felony, the general provision of the 7 & 8 Geo. IV., c. 28, s. 8, enables the court to impose the sentence of seven years' transportation.

425

375

CHAPTER XXIX.

OF JUDGMENT AND ITS CONSEQUENCES.

NINTH.
JUDGMENT
AND ITS

We are now to consider the next stage of criminal prosecution, after trial and conviction are past, in such crimes and misCONSEQUEN- demeanors as are either too high or too low to be included

CES.

ed when de

arrest of

within the benefit of clergy; which is that of judgment.' For when, upon a capital charge, the jury have brought in their verdict of 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 Capias issu- awarded against him. And, in case the defendant be found fendant guilty of a misdemeanor (the trial of which may, and does, found guilty. 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 Moving in outlawry. But whenever he appears in person, upon either a judgment. 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 of fense. And if the objections be valid, the whole proceedings shall be set aside, but the party may be indicted again." And we may take notice, 1. That none of the statutes of jeofails, 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 favor of life great strictness has at all times been [376] 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. And 2 Hal., P. C., 193.

"C

b See vol. iii., P. 406.

a 4 Rep., 45.

(1) As to the judgment in criminal cases in general, see 2 Hale, 391 to 406; Hawk., b. 2, c. 48, per tot.; Com. Dig., Indictment, N.; 1 Chit., Crim. L., 2d ed., 695 to 722.-[CHITTY.]

(2) See now the 7 Geo. IV., c. 64, s. 20, 21, ante, p. 333, n. (5); p. 340, n. (16).

* On an indictment for felony, the trial in New York can not be had unless the defendant be personally present; on an indictment for any other offense, it is enough that he be present by attorney.-(2 R. S., 734, § 13.)

The statutes of jeofails are now extended to criminal proceedings. See ante, p. 335, notes (5) and *; also p. 336, note *.

yet no man was more tender of life than this truly excellent

judge.

don.

A pardon, also, as has been before said, may be pleaded in Plea of par 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.

benefit of

Praying the benefit of clergy may also be ranked among the Praying motions in arrest of judgment, of which we spoke largely in the clergy. preceding chapter.

sources fail,

nounced.

If all these resources fail, the court must pronounce that judg. If these re ment which the law hath annexed to the crime, and which judgment hath been constantly mentioned, together with the crime itself, must be proin 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, 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

(3) The stat. 11 Geo. IV. & 1 Will. IV., c. 70, s. 9, enacts, that upon all trials for felonies or misdemeanors, upon any record of the Court of King's Bench, judgment may be pronounced during the sittings or assizes, by the judge before whom the verdict shall be taken, as well upon the persons who shall have suffered judgment by default or confession upon the same records, as upon those who shall have been tried and convicted, whether such person be present or not in court (except only where the prosecutions shall be by information filed by leave of the Court of King's Bench, or such cases of information filed by his majesty's attorney-general, wherein the attorney-general shall pray that the judgment may be postponed); and the judgment so pronounced shall be indorsed upon the record of nisi prius, and afterward entered upon the record in court, and shall be of the same force and effect as a judgment of the court, unless the court shall, within six days after the commencement of the ensuing term, grant a rule to show cause why a new trial should not be had, or the judgment amended; and it shall be lawful

for the judge before whom the trial
shall be had either to issue an immedi-
ate order or warrant for committing the
defendant in execution, or to respite the
execution of the judgment, upon such
terms as he shall think fit, until the sixth
day of the ensuing term; and in case of
imprisonment, to commence on the day
on which the party shall be actually
taken to and confined to prison. As to
the practice under this statute, see 4 B.
& Adol., 135; 4 C. & P., 538, 540.

The stat. 4 Geo. IV., c. 48, s. 1, ena-
bles the court to direct judgment of
death to be recorded against the offend-
er, instead of pronouncing it, in all cases
of felony except murder; and the same
power is extended to the case of mur-
der, by 6 & 7 Will. IV., c. 30, s. 1 (ante,
p. 202, n. (26)). See, also, the 1 Vict.,
c. 77, s. 3, as to the central criminal
court; post, p. 404, n. (3).

(4) This punishment is altered by the
54 Geo. III., c. 146. See ante, p. 93.—
[CHITTY.]

(5) But see now the 9 Geo. IV., c. 31, s. 2, ante, p. 204, n. (27).

authorized, by a tacit consent, an almost general mitigation of [377] such parts of these judgments as savor 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 forfeiture 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 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 corporeal 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.'

(6) These punishments are now un- with intent to commit felony; assaults known to the English law.

on peace or revenue officers; assaults on persons endeavoring to save wreck; assaults on deer-keepers or game-keepers by persons unlawfully in pursuit of deer or game; assaults in pursuance of a conspiracy to raise wages, &c., &c. Stats. 1 & 2 Geo. IV., c. 88, s. 1; 3 Geo. IV., c. 114; 7 & 8 Geo. IV., c. 29, s. 4, Hard labor may now be inflicted, in and c. 30, s. 27; 9 Geo. IV., c. 31, and addition to the sentence of imprison- c. 69, s. 2 & 9; 3 & 4 Will. IV., c. 53, ment, upon all indictments for larceny, s. 53, 61; 4 & 5 Will. IV., c. 67; 1 Vict., simple and compound, at common law c. 36, s. 42; c. 84, s. 3; c. 85, s. 8; c. and by statute; burglary; piracy; re- 86, s. 7; c. 87, s. 10; c. 88, s. 5; c. 89, ceiving stolen goods; embezzlement; s. 12; c. 90, s. 3; c. 91, s. 2; 4 & 5 obtaining property under false pretens- Vict., c. 56, s. 4; 5 & 6 Vict., c. 122, s. es; malicious burning; other malicious 32; 6 & 7 Vict., c. 96, s. 3. Hard lainjuries to property, punishable under bor can not be inflicted on an indictthe 7 & 8 Geo. IV., c. 30, or subsequent ment for unlawfully having possession acts; manslaughter; felonious injuries of naval stores, under the 39 & 40 Geo. to the person; forgery and uttering forg. III., c. 89; 2 G. & D., 617. ed instruments; false personation; of- Solitary confinement may also now be fenses relating to the coin; administer- ordered in almost every case of felony, ing or taking oaths to commit treason or and in many of the more aggravated felony; inciting soldiers or sailors to misdemeanors (see 7 & 8 Geo. IV., c. mutiny, &c.; felonious prison-breach; 29, s. 4, and c. 30, s. 27; 1 Will. IV., c. felonious rescue; returning from trans- 66, s. 26; 2 Will. IV., c. 34, s. 19; 1 portation; perjury and subornation of Vict., c. 36, s. 42; c. 84, s. 3; c. 85, s. perjury; extorting money by threat of 8; c. 86, s. 7; c. 87, s. 10; c. 88, s. 5; libel; sending threatening letters; fraud- c. 89, s. 12; c. 90, s. 3; c. 91, s. 2); but ulent bankruptcy; riotous assembling, by the special provisions of all the last&c.; felonious demolition; riot; smug- mentioned acts, and by a general progling; bigamy; keeping gaming-houses, vision in the 1 Vict., c. 90, s. 5, such solor disorderly houses; poaching; assaults itary confinement can in no case exceed

(7) Pillory is now abolished by the 56 George III., c. 138, and 1 Victoria, c. 23; and fine and imprisonment, or both, substituted for it in cases where before it was the only punishment to be inflicted.

1

tions on

Disgusting as this catalogue may seem, it will afford pleas- Observaure to an English reader, and do honor to the English law, to ishments in compare it with that shocking apparatus of death and torment general. 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 offense, 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 [378]

one month at a time, or three months in the space of one year.

a certain time and place convicted of felony, without otherwise describing the previous felony; and that a certificate, containing the substance and effect only of the indictment and conviction for the previous felony, purporting to be signed by the officer having the custody of the records of the court, or his deputy, shall, with proof of the identity of the person of the offender, be sufficient evidence of the first conviction, without proof of the signature or official character of the person appearing to have signed it. But in order to prevent the prisoner from being prejudiced on his trial for the subsequent felony, by the statement of his former conviction, the stat. 6 & 7 Will. IV., c. 111, provides that the jury shall not be charged to inquire concerning such conviction, and that the reading of And, lastly, by the 11th section of the the statement of the former conviction same statute, if any person be convicted to the jury, as part of the indictment, of any felony not punishable with death, shall be deferred till after the convic committed after a previous conviction tion for the subsequent felony; with a for felony, he shall thereupon be liable proviso, that if any evidence (i. e., eito be transported for life, or any term ther by witnesses called for the prisonnot less than seven years, or to be im- er, or by cross-examination of the witprisoned for any term not exceeding nesses for the prosecution; 8 C. & P., four years, with whipping (if a male); 676) shall be given of the prisoner's and it is provided that in the indictment good character, the prosecutor, in anfor the subsequent felony it shall be suf- swer thereto, may give evidence of the ficient to state that the offender was at former indictment or conviction.*

Wherever sentence is passed for felony on a person already imprisoned under sentence for another crime, the court may award imprisonment for the subsequent offense, to commence at the expiration of the previous imprisonment; and where the party is already under sentence of imprisonment or transportation, the court, if empowered to pass sentence of transportation, may award such sentence for the subsequent offense, to commence at the expiration of the previous imprisonment or transportation; although the aggregate term of imprisonment or transportation may exceed the term for which either of those punishments could be otherwise awarded. 7 & 8 Geo. IV., c. 28, s. 10.

*In New York, all convicts in the state prisons are required to be kept constantly employed at hard labor during the daytime.—(2 R. S., 767, § 55.) A person convicted of an offense punishable by imprisonment in a county jail may be sentenced to confinement in a solitary cell in the jail for the period of 30 days, but no longer.-(2 R. S., 697, § 41.) When a person is convicted of two or more offenses before sentence is pronounced upon him for either offense, the imprisonment to which he is sentenced upon the second or other subsequent conviction commences at the termination of the first or second term, as the case may be. -(2 R. S., 700, § 11.) Second offenses after conviction for misdemeanor or felony, punishable by imprisonment in a state prison, are punished with increased severity. (See 2 R. S., 699, § 8, 9, 10.)

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