them to serious reflection, and to teach them both the principles and practice of every Christian and moral duty. And if the whole of this plan be properly executed, and its defects be timely supplied, there is reason to hope that such a reformation may be effected in the lower classes of mankind, and such [*372 a gradual scale of punishment be affixed to all gradations of guilt, as may in time supersede the necessity of capital punishment except for very atrocious crimes.

It is also enacted by the same statute, 19 Geo. III. c. 74, that, instead of burning in the hand, (which was sometimes too slight and sometimes too disgraceful a punishment,) the court in all clergyable felonies may impose a pecuniary fine, or (except in the case of manslaughter) may order the offender to be once or oftener, but not more than thrice, either publicly or privately whipped; such private whipping (to prevent collusion or abuse) to be inflicted in the presence of two witnesses, and, in case of female offenders, in the presence of females only. Which fine or whipping shall have the same consequences as burning in the hand; and the offender so fined or whipped shall be equally liable to a subsequent detainer or imprisonment.

In this state does the benefit of clergy at present stand; very considerably different from its original institution: the wisdom of the English legislature having, in the course of a long and laborious process, extracted, by a noble alchemy, rich medicines out of poisonous ingredients, and converted, by gradual mutations, what was at first an unreasonable exemption of particular popish ecclesiastics into a merciful mitigation of the general law with respect to capital punishment.

From the whole of this detail we may collect, that however in times of ignorance and superstition that monster in true policy may for a while subsist, of a body of men residing in the bowels of a state and yet independent of its laws; yet, when learning and rational religion have a little enlightened men's minds, society can no longer endure an absurdity so gross as must destroy its very fundamentals. For, by the original contract of government, the price of protection by the united force of individuals is that of obedience to *the

united will of the community. This united will is declared in the laws [*373

of the land; and that united force is exerted in their due and universal execution.

II. I am next to inquire to what persons the benefit of clergy is to be allowed at this day; and this must be chiefly collected from what has been observed in the preceding article. For, upon the whole, we may pronounce that all clerks in orders are, without any branding, and of course without any transportation, fine, or whipping, (for those are only substituted in lieu of the other,) to be admitted to this privilege and immediately discharged; and this as often as they offend. (i) Again, all lords of parliament and peers of the realm having place and voice in parliament, by the statute 1 Edw. VI. c. 12, (which is likewise held to extend to peeresses,)(k) shall be discharged in all clergyable and other felonies provided for by the act, without any burning in the hand or imprisonment, or other punishment substituted in its stead, in the same manner as real clerks convict; but this is only for the first offence. Lastly, all the commons of the realm not in orders, whether male or female, shall for the first offence be discharged of the capital punishment of felonies within the benefit of clergy, upon being burned in the hand, whipped, or fined, or suffering a discretionary imprisonment in the common gaol, the house of correction, one of the penitentiary houses, or in the places of labour for the benefit of some navigation; or, in case of larceny, upon being transported for seven years, if the court shall think proper. It hath been said that Jews, and other infidels and heretics, were not capable of the benefit of clergy till after the statute 5 Anne, c. 6, as being under a legal incapacity for orders.(?) But I much question whether this was ever ruled for law since the reintroduction of the Jews into England in the time of Oliver

(4) 2 Hal. P. C. 375.

(*) Duchess of Kingston's case in Parliament, April 22, 1776.

() 2 Hal. P. C. 373. 2 Hawk. P. C. 338. Fost. 306.

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 high 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 admiralty

jurisdiction which would be clergyable if committed by land, the constant course is to acquit and discharge the prisoner.(0) 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.

(n) 1 Hal. P. C. 346.

() Moor. 756. Fost. 288.

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

(9) 2 Hawk. P. C. 342.

(7) 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 considered 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)

CHAPTER XXIX.

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.
(t) 3 P. Wms. 487.

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

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 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 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 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 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 being *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 confiscation, by forfeiture of lands, or movables, or both, or of the profits of lands for (a) 4 Rep. 45.

(b) See book iii. page 407.

() 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 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; 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 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.

[*378

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(d) Stat. 1 W. and M. st. 2, c. 2.

(*) 2 Inst. 48.