yet, when offences are committed within the admiralty- [374] IV. LASTLY, we are to inquire what the confequences are to the party, of allowing him this benefit of clergy. I speak not of the branding, fine, whipping, imprisonment, or tranfportation; which are rather concomitant conditions, than confequences of receiving this indulgence. The confequences are fuch as affect his prefent intereft, 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. * Meor, 756. Faft. 288. P 2 Hawk. P. C. 341. 11 Hal, P. C. 529. Fofter 356, 357 (5) In the cafe of all capital larcinies in a dwelling-houfe, the benefit of clergy has been taken away, as well from those who aid, affift, and abet, as from thofe who actually commit the crime, by 3 W, & M. c. 9. and 12 Ann. fi. 1. c. 7. See p. 240. ante. AND, AND, we may observe, 1. That by this conviction he forfeits all his goods to the king; which, being once vested in the crown, fhall not afterwards be reftored to the offender'. 2. That, after conviction, and till he receives the judgment of the law, by branding or fome of it's fubftitutes, or elfe is pardoned by the king, he is to all intents and purposes a felon, and fubject to all the disabilities and other incidents of a felons. 3. That, after burning or it's fubftitute, 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 fuch benefit is excluded: and this by statutes 8 Eliz. c. 4. and 18 Eliz. c. 7. 4. That by the burning, or it's substitute, or the pardon of it, he is restored to all capacities and credits, and the poffeffion of his lands, as if he had never been convicted'. 5. That what is faid with regard to the advantages of commoners and laymen, fubfequent to the burning in the hand, is equally applicable to all peers and clergymen, although never branded at all, or fubjected to other punishment in it's ftead. For they have the fame privileges, without any burning, or any substitute for it, which others are entitled to after it ". OF CHAPTER THE TWENTY-NINTH JUDGMENT AND IT'S CONSEQUENCES. WE E are now to confider the next stage of criminal profecution, after trial and conviction are past, in fuch crimes and mifdeme fnors, 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 prefence of the prisoner; he is either immediately, or at a convenient time foon after, afked 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 mifdemefnor, (the trial of which may, and does usually, happen in his absence, after he has once appeared,) a capias is awarded and iffued, to bring him in to receive his judgment; and, if he abfconds, he may be profecuted even to outlawry. But whenever he appears in perfon, 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 fufficient certainty in fetting forth either the perfon, the time, the place, or the offence. And, if the objections be valid, the whole proceedings fhall be set aside; but the party may be indicted again. And we may take notice, 1. That none of the ftatutes of jeofails, for amendment of errors, extend to indictments or proceedings in cri 1 minal cafes; and therefore a defective indictment is not aided by a verdict, as defective pleadings in civil cafes are. 2. That, in favour of life, great ftrictness has at all times been obferved, in every point of an indictment. Sir Matthew Hale indeed complains, "that this ftrictnefs is grown to be a "blemish and inconvenience in the law, and the adminiftra"tion thereof: for that more offenders escape by the over"eafy ear given to exceptions in indictments, than by their [376] "own innocence." And yet no man was more tender of life than this truly excellent judge. A PARDON alfo, as has been before faid, may be pleaded in arreft of judgment: and it has the fame advantage when pleaded here, as when pleaded upon arraignment; viz. the faving the attainder, and of courfe 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 foon as poffible. PRAYING the benefit of clergy may also be ranked among the motions in arreft of judgment: of which we spoke largely in the preceding chapter. If all these refources fail, the court must pronounce that judgment, which the law hath annexed to the crime, and which hath been conftantly mentioned, together with the crime itself, in fome or other of the former chapters. Of thefe fome are capital, which extend to the life of the offender, and confift generally in being hanged by the neck till dead; though in very atrocious crimes other circumftances of terror, pain, or difgrace are fuperadded; as, in treasons of all kinds, being drawn or dragged to the place of execution; in high treason affecting the king's perfon or government, embowelling alive, beheading, and quartering; and in murder, a public diffection. And, in cafe of any treason com 2 Hal. P. C. 193. mitted mitted by a female, the judgment is to be burned alive (1). But the humanity of the English nation has authorized, by a tacit confent, an almoft general mitigation of fuch part of these judgments, as favours of torture or cruelty: a fledge or hurdle [377] being ufually allowed to fuch traitors as are condemned to be drawn; and there being very few inftances (and those accidental or by negligence) of any perfons being embowelled or burned, till previously deprived of fenfation by ftrangling. Some punishments confift in exile or banishment, by abjuration of the realm, or transportation: others in lofs of liberty, by perpetual or temporary imprisonment. Some extend to confifcation, by forfeiture of lands, or moveables, or both, of 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, occafion a mutilation or difmembering, by cutting off the hand or ears: others fix a lafting ftigma on the offender, by flitting the nostrils, or branding in the hand or cheek. Some are merely pecuniary, by ftated or difcretionary fines: and lastly there are others, that confift principally in their ignominy, though moft of them are mixed with fome degree of corporal pain; and these are inflicted chiefly for fuch crimes, as either arife from indigence, or render even opulence difgraceful. Such as whipping, hard labour in the house of correction or otherwife, the pillory, the flocks, and the ducking-ftool. DISGUSTING as this catalogue may feem, 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 fpecies, though not always the quantity or degree, of punishment is afcertained for every offence; and that it is not left in the breast of any (4) But this is now altered by 30 Geo. III. c. 48. See p. 204. 1. 7. ante, judge, |