being subjected to a slight degree of punishment, burning in the hand, and not allowed to claim the clerical privilege more than

once.

8. Was this distinction between learned laymen and real clerks in orders afterward abolished, and again restored ?—367.

Yes; it was abolished for a time by the statutes 28 Henry VIII., c. 1, and 32 Henry VIII., c. 3; but it is held to have been virtually restored by statute 1 Edward VI., c. 12.

9. What was done with those who claimed benefit of clergy?—368. After the burning, the laity, and before it, the real clergy, were discharged from the sentence of the law in the king's courts, and delivered over to the ordinary, to be dealt with according to the ecclesiastical canons.

10. What then took place?-368.

The ordinary, in person, or by deputy, at once set himself formally to make a purgation of the offender by a new canonical trial; although he had been previously convicted by his country, or perhaps by his own confession. By this purgation (for he was usually acquitted), the party was restored to his credit, his liberty, his lands, and his capacity of purchasing afresh, and was entirely made a new and an innocent man.

11. What was a consequence of this almost constant acquittal of felonious clerks by purgation?-368, 369.

It was the occasion that, upon very heinous and notorious circumstances of guilt, the temporal courts would not trust the ordinary with the trial of the offender, but delivered over to him the convicted clerk, absque purgatione facienda; in which situation the clerk convict could not make purgation, but was to continue in prison during life, and was incapable of acquiring any personal property, or receiving the profits of his lands, unless the king should please to pardon him.

12. What change was subsequently made, as to the treatment of the clerk convict?-369.

The statute 18 Elizabeth, c. 7, enacted that, after the of

fender (not in orders) was allowed his clergy, he should not be delivered to the ordinary as formerly; but upon such allowance and burning in the hand, he should forthwith be enlarged and delivered out of prison; with the proviso, that the judge may, if he thinks fit, continue the offender in jail for any time not exceeding a year. And thus the law continued, for above a century, almost unaltered.

CHAPTER XXIX.

OF JUDGMENT, AND ITS CONSEQUENCES.

1. What, upon a capital charge, is the prisoner asked by the court, when the jury have brought in their verdict of guilty?—375.

When the jury have brought in their verdict, in 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 judgment should not be awarded against him.

2. When the defendant is found guilty, in his absence, what issues?-375.

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.

3. But whenever he appears in person, what may he offer in arrest or stay of judgment?-375.

He may at this period, upon either a capital or inferior conviction, as well as at his arraignment, offer any exceptions to the indictment, in arrest or stay of judgment. And if his objections be valid, the whole proceedings are set aside, but the party may be indicted again.

4. What is the effect of a pardon, when pleaded in arrest of judgment?--376.

It has the same advantage, when pleaded in arrest of judg

ment, 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.

5. What if all motions in arrest of judgment fail?--376.

Then the court must pronounce that judgment which the law has annexed to the crime.

6. What has the Bill of Rights declared as to fines and punishments?--379.

That excessive fines ought not to be imposed, nor cruel and unusual punishments inflicted; which was only declaratory of the old constitutional law.

7. What is the inseparable consequence of the sentence of death?380.

When sentence of death is pronounced, the immediate, inseparable consequence, by the common law, is attainder. The criminal 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.

8. What are the consequences of attainder?-381. Forfeiture, and corruption of blood.

9. What is forfeiture?-381.

It is twofold: of real and of personal estates.

10. When does forfeiture of real estates obtain ?--381.

By attainder in high treason, a man forfeits to the king all his lands and tenements of inheritance, whether fee-simple or fee-tail; and all his rights of entry on lands and tenements, which he had at the time of the offense committed or afterwards; and, also, the profits of all lands and tenements which he had in his own right for life or years, so long as such interest shall subsist. In petit treason and felony, the offender forfeits all his chattel interests absolutely, and the profits of all estates of free

hold during life. These are the forfeitures of real estates created by the common law, as consequent upon attainders by judgment of death or outlawry, exclusive of forfeitures created by the statutes of præmunire and others.

11. When does forfeiture of goods and chattels occur?-386, 387.

In every one of the higher kinds of offense; in high treason or misprison thereof, petit treason, felonies of all sorts, self-murder or felo de se, petit larceny, standing mute, and some others.

12. In what is the natural justice of forfeiture, or confiscation of property, for treason, founded?-382.

In this consideration: that he who has thus violated the fundamental principles of government, and broken his part of the original contract between king and people, has abandoned his connections with society, and has no longer any right to those advantages which before belonged to him purely as a member of the community; among which social advantages, the right of transferring or transmitting property to others is one of the chief.

13. What remarkable differences are there between the forfeiture of lands, and the forfeiture of goods and chattels ?-387.

The differences are: 1. Lands are forfeited upon attainder, and not before; goods and chattels are forfeited by conviction. 2. In outlawries for treason or felony, lands are forfeited by the judgment; but the goods and chattels are forfeited by a man's being first put in the exigent, without staying till he is finally outlawed. 3. The forfeiture of lands has relation to the time of the fact committed, so as to avoid all subsequent sales and encumbrances; but the forfeiture of goods and chattels has no relation backward, so that those only which a man has at the time of conviction shall be forfeited.

14. What is corruption of blood* ?-388.

Besides forfeiture, another immediate consequence of attainder is the corruption of blood, both upward and downward, so * By the 54 George III., c. 145, corruption of blood was abolished in all cases except the crimes of high treason and murder.

that an attainted person can neither inherit lands, or other hereditaments, from his ancestors, nor retain those he is already in possession of, nor transmit them by descent to any heir, but the same shall escheat to the lord of the fee, subject to the king's superior right of forfeiture; and the person attainted shall also obstruct all descents to his posterity, wherever they are obliged to derive a title through him to a remote ancestor.*

CHAPTER XXX.

OF REVERSAL OF JUDGMENT.

1. In what ways may judgments be set aside?-390.

Judgments, with their several connected consequences of attainder, forfeiture, and corruption of blood, may be set aside in two ways: by falsifying or reversing the judgment, or else by reprieve or pardon.

2. How may the judgment be reversed?-390-392.

In three ways: 1. Without a writ of error, for matter foreign to or dehors the record, that is, not apparent upon the face of it. 2. By writ of error. 3. By act of parliament.

3. Where does a writ of error lie?-391.

It lies from all inferior criminal jurisdictions to the court of king's bench, and from the court of king's bench to the house of peers.

4. For what is writ of error brought ?-391.

It may be brought for notorious mistakes in the judgment, or other parts of the record.

By the 3 and 4 William IV., c. 106, s. 10, it is enacted, that when the person, from whom a descent is to be traced, shall have had any relation who, having been attainted, shall have died before such descent shall have taken place, his attainder shall not prevent any person from inheriting who would have been capable, by tracing his descent through such relation, if he had not been attainted, unless the land bad escheated in consequence of such attainder before 1st January, 1834.